November 1999

Obstacles to Civil Gideon: The Washington State Experience

by Leonard W. Schroeter

If we are to alleviate the continuing disgrace of large numbers of people being excluded from access to justice, it will rest with our state courts and a committed, knowledgeable bar. Earlier articles in this publication reviewed why legal representation is a fundamental constitutional right.1 Usually we look to the United States Supreme Court (USSC) since it construes the U.S. Constitution, which is "the supreme Law of the Land."2  That Constitution, however, ignored consideration of fundamental individual rights, necessitating an important afterthought, the Bill of Rights. In its contents and explicit language, it is an intentionally incomplete specification of fundamental rights. The Ninth Amendment explicitly states: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." It is clear that "other" fundamental rights exist, and are to be protected and implemented in state courts, under the Tenth Amendment and its jurisprudence.

Too much dependence has been placed upon the federal Constitution to supply answers it never intended to provide. If we ask what is fundamental and what is a "right," the primary source is found in the Declaration of Independence,3  which is the creative and juridical basis of our existence. It states what is "self-evident." These fundamental rights preceded the federal Constitution and those of the states. States, quite independently, can and should look to their own basic writings and to common constitutional heritage to protect and implement rights. That was the Founders' view of rights jurisprudence. The "privileges and immunities" of our people exist wherever we live.

It is no accident that the Enabling Act of February 22, 1889 admitted Washington "into the Union on an equal footing with the original states" and required us to create a Constitution, proscribing that:

The constitutions shall be republican in form, and make no distinction in civil or political rights on account of race or color, except as to Indians not taxed, and not be repugnant to the Constitution of the United States and the principles of the Declaration of Independence.

What is fundamental in our state Constitution are the basic principles in our creating document, particularly Article I, Declaration of Rights, notably:

Section 1, Political Power — All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights.

Section 10, Administration of Justice — Justice in all cases shall be administered openly and without unnecessary delay. This section is similar to those in 39 states of the union, although these often have more extended language. It is the so-called access to justice clause. Its origins are in the Magna Carta.4 

Section 29, Constitution Mandatory — The provisions of this Constitution are mandatory, unless by express words they are declared to be otherwise.

Section 30, Rights Reserved — The enumeration in this Constitution of certain rights shall not be construed to deny others retained by the people.

Section 32, Fundamental Principles — A frequent recurrence to fundamental principles is essential to the security of individual rights and the perpetuity of free governments.

It is difficult to understand how any individual right bearer, of whatever race, gender, religion, sexual preference, age, economic status or physical condition can be denied access to justice, or the protection of government, by virtue of that status. A fundamental right is a right of every person, "created equal and endowed by their creator with certain inalienable rights." What could be clearer and more fundamental that that? Similarly, if there is a "right," there must be a "remedy." That is the purpose for which governments are instituted. If courts do not fashion a remedy for these violations of rights, rights are meaningless. The legitimate power of state constitutionalism, with its mandate to protect its citizens, is the keystone of our heritage. Our courts are free to cut through impediments and doctrinal difficulties inapplicable to the positive rights theory of access to justice. There is no legitimate constitutional obstacle to implementing access to justice. Neither doctrines of judicial restraint, based on misinterpretation of separation of power, or federal supremacy arguments, preclude implementation of these fundamental rights.

Early Washington State Supreme Court decisions made explicit the fundamentality of Washington's Declaration of Rights. From the first serious look at the implementation of access to justice for the poor in O'Connor v. Matzdorff5 to the clear constitutional grounding of Carter v. University of Washington,6 our State Supreme Court decisions have enunciated protection of individual rights. A radical attack on fundamental rights occurred in Housing Authority of King County v. Saylors7 (which will be discussed in next month's article, along with the current jurisprudence).

In O'Connor, Justice Rosellini, for a unanimous Court, held that courts have inherent power to waive prepayment of court fees if the party can demonstrate indigency, regardless of any statutory authority. O'Connor was an unemployed woman with five children living on a $325 monthly public-assistance grant. She had a justice court claim of $215.50 and requested leave to proceed in forma pauperis. Her claim was rejected because she was unable to pay a filing fee of $3.50. The denying judge was non-salaried; his compensation came from the filing fees. The Appeals Court granted a petition for mandamus, ordering the court below to file the complaint and note the suit. It held that this equitable power was properly exercised "when a fundamental issue involving the rights of the petitioner is presented," claiming entitlement to pursue her remedy for a wrong suffered. Since she raised a fundamental issue, the Court assumed original jurisdiction. Since her request involved "the interests of the state at large, of the public, or when it is necessary in order to afford an adequate remedy," the questions were ones that deeply affected the interests of the public and "a regrettably large segment of our society. The right of the poor to obtain redress for wrongs and to defend themselves when sued by the more affluent … is of such significant public import and urgency that we are justified in assuming original jurisdiction." The fundamental interest was "the concept of equal justice to every person." The Court relied on its inherent judicial power to waive prepayment of a filing fee. These powers include the right to accept cases in forma pauperis and waive fees in civil actions, and "sufficiently establish that courts have inherent power to waive prepayment of court fees" in the presence of poverty. The Court's concern was that if there was inaction to "the claims of the poor," it would "deny them access to courts of limited jurisdiction, because of their poverty [which] would deny a large part of the justice which is so sorely needed."

The first scholarly juridical decision in Washington on right to counsel was by Justice Finley in In re Luscier.8  The issue was "whether the right of a parent to his children is sufficiently fundamental to entitle an indigent parent to appointment of counsel at public expense in a permanent child-deprivation proceeding as a matter of constitutional law." A unanimous court held that the full panoply of due process safeguards applies to deprivation hearings and that fathers' rights to counsel in permanent child deprivation proceedings is mandated by the constitutional guarantees of due process under the Fourteenth Amendment and the state constitution.

The Court found that the fundamental nature of parental rights as a "liberty" protected by the due process clause was well established. Justice Finley noted, however, that:

While this Court has not attempted to define with exactness the liberty thus guaranteed, the term … [w]ithout doubt, denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. (Emphasis added.)

Thus, to the Court, "it would be hard to think of a system of law which works more to the oppression of the poor than the denial of appointed counsel to indigents in neglect proceedings…the parents' right to counsel is mandated by the constitutional guarantees of due process in the Fourteenth Amendment and Article I, Section 3 of the Washington Constitution."

Justice Finley distinguished the then recent decision of Argersinger v. Hamlin,9 which denied counsel by characterizing a proceeding as 'civil':

In that case, the Court recognized the defendant's right to counsel where imprisonment was a possibility. The distinction to be made in Argersinger is not whether a proceeding is "civil" or "criminal," but whether the individual will be deprived of liberty. Surely, the reasoning of Argersinger, which requires the appointment of counsel if there is the possibility of even a one-day jail sentence, must also extend to a proceeding where a parent may be deprived of a child forever. The Argersinger decision is, of course, grounded upon the Sixth Amendment which cannot be extended to the parents in a child deprivation hearing.… It cannot be gainsaid, however, that the right to one's children is a "liberty" protected by the due process requirements of the Fourteenth Amendment and Washington's Constitution.

Justice Finley's appreciation of the intimate relationship of both state constitutional grounds and the historic fundamental rights that were involved, rather than constitutional formulas, made this a persuasive, useful analysis of judicial duty and protection of individual rights.

In re Myricks' Welfare,10 another dependency case, involved a father who asked that the rule in Luscier be extended to temporary deprivation proceedings, where the likelihood of eventual permanent deprivation was substantial. Justice Wright held for the petitioner and ordered the juvenile court to appoint counsel. The Court agreed to the fundamentality of the right of the parent, but also noted that in the context of these civil proceedings, the court must be cognizant that:

The essence of due process is the right to be heard. The hearing required by due process must be both "meaningful," and "appropriate to the nature of the case."…In dependency and child neglect proceedings — even if only preliminary to later and more final pronouncements — the indigent parent has to face the superior power of State resources.… The right to one's child is too basic to expose to the State's forces without the benefit of an advocate.… Here, the nature of the rights in question and the relative powers of the antagonists, necessitate the appointment of counsel.

Several months later, Justice Wright, in McInturf v. Horton,11 held for the Court that counsel must be appointed for an indigent defendant in a misdemeanor case where a conviction might result in a loss of liberty, since the Court cannot determine in advance of trial what the punishment will be.

Later, in Tetro v. Tetro,12 an appeal raised the right to appoint counsel for indigent persons charged with contempt for non-compliance with child support orders. The trial court found no statutory or constitutional right to state-paid counsel in show-cause hearings. Justice Utter, for a unanimous Court, reversed, holding that whenever a contempt hearing may result in a jail sentence, counsel is required. The right of indigents to have counsel appointed to represent them in judicial proceedings had several constitutional sources. "Where criminal charges punishable by loss of liberty are involved, the Sixth Amendment to the United States Constitution applies and requires that defendants who cannot afford to hire an attorney be provided one by the State… the same requirement inheres in the Washington Constitution, Article 1, Section 22 and is implemented by several sections of our Code." Furthermore, the appointment of counsel is constitutionally required when procedural fairness demands it, even absent special statutory guarantees. For example:

In proceedings civil in form but criminal in nature—such as juvenile delinquency or mental commitment hearings — representation is clearly part of due process.… But in cases where the individual's right to remain unconditionally at liberty is not at issue—such as child neglect or parole revocation hearings — the right to counsel turns on the particular nature of the proceedings and questions involved.

The proceedings had all the trappings of criminal trials. Contempt hearings, for example, are quasi-criminal … but in so far as the right to counsel is concerned, the label put on proceedings is less important than the threat of imprisonment they entail. The distinction to be made is not whether a proceeding is "civil" or "criminal" but whether the individual will be deprived of liberty.… When a judicial proceeding may result in the defendant being physically incarcerated, counsel is required regardless of whether the trial is otherwise "criminal" in nature and demands that the protection of legal advice and advocacy be given all persons faced with it.

In June 1975, our State Supreme Court decided Carter v. University of Washington.13 Justice Finley's opinion for the Court was a masterful analysis of the fundamental right of access. His opinion was an essay on the history and jurisprudence of court access. The facts were simple: Carter was a civil service employee of the University of Washington's trucking service, terminated for alleged violation of regulations. The termination was reviewed by the Higher Education Personnel Board, which upheld it and dismissed his appeal. Carter then sought review of the administrative ruling from the Superior Court, which affirmed the administrative agency. Carter, by then indigent and aggrieved by what he saw as an injustice, sought to appeal the superior court's ruling without payment of costs or an appeal bond required under the Rules of Appellate Procedure. The Court held he was entitled to waiver of filing fees and bonds for costs because of his constitutional rights to access to justice. It also criticized the complexity of the rules referable to appeals from administrative agencies. The Court stated:

Universal access to the courts is certainly not a novel concept in the annals of jurisprudence. Access to the courts was prized and protected by the Romans over 2,300 years ago.

It is regrettable in a social and cultural sense that in the United States progress in terms of simplified, easier access to the courts and the administration of justice has been somewhat less than impressive. Fifty years ago, in 1924-25, the American Bar Association's Committee on Legal Aid Work drafted a model Poor Litigant's Statute which provided, inter alia, that a poor litigant would be excused from giving security for costs and from payment of any fees.…But the ABA's model statute apparently has had only nominal influence in most jurisdictions in the development of poverty law. On the other hand, in O'Connor v. Matzdorff, the Supreme Court of Washington forthrightly provided some real judicial leadership in shaping the emerging rule that indigents should not be denied access to the justice system simply by reason of poverty. We perceive no adequate reasons to retreat from that leadership in the instant case.

The policy underlying equal access to the courts is not only sound but socially compelling. Our courts serve as a complaint desk for our society. Curiously enough, they have served reasonably well. Otherwise, the so-called social compact and our society as we know it might have come unglued ere now. But this is no time for equanimity or self-serving encomiums. Our court system is the central mechanism for the orderly resolution of disputes that arise in our society between citizens and between citizens and the government. Moreover, it is manifest that there is a direct relation between access to the courts and the exertion of power within the system relative to the evaluation and resolution of citizens' grievances. Failure to provide equal access to the courts demonstrates not only a poverty of sensitivity to social problems but also is fraught with the dangers of alienating our citizenry from the system, and encouraging self-help with concomitant breaches of the peace and likely overtones of violence. Indeed, much of the turmoil in our country in recent years has been attributed to the "frustrations of the powerless."… Obstacles to access to the courts and our justice system undoubtedly exacerbate such frustrations. Therefore, whether the issue involves a simple unlawful detainer action, a challenge to fundamental societal arrangements or values, or as here, a challenge to the legality of terminating one's employment, it is imperative that all citizens be afforded effective access to our justice machinery to redress their grievances.

The Carter opinion detailed the "all-encompassing doctrine of implementing rights through the constitutional right of access to the courts." It emphasized the duty of the judiciary to use the "court's inherent power." It criticized the recent abandonment of constitutional rights by the Burger court, stating:

In this regard, whatever one's rights may be pursuant to the federal constitution, the State of Washington is always at liberty to grant its citizenry broader rights. Because of our conviction that judicial trepidation in the face of social need should not prevail, we forthrightly predicate a general right of access to the courts upon the Washington Constitution. After all, our constitution was drafted to be used.

In order to assess the constitutionality of impediments placed upon access to the courts, both the nature of the asserted right and the reasons for the restrictions placed upon it by the State must be considered.

In weighing the nature of a right, it is clear that the fact that it is not specifically mentioned in the constitution is not dispositive.

The Court's careful elaboration of its juridical basis should be read. Its basic premises are:

At least two different rationales lead to the conclusion that, in Washington, the right of access to the courts entails a fundamental right. First, some rights are the essential basis for the assertion of all other rights.… Thus, some rights are "preservative of all rights" and are therefore deemed fundamental. The right of access to the courts is such a right since the judicial system is the central institution for the assertion, protection, and enforcement of most other rights in our society.… Accordingly, we consider access to the courts to be a fundamental right. As an alternative predicate for the conclusion that access to the courts is a fundamental right, reference can be had to Washington Const., Art. 1, § 4: "The right of petition and of the people peaceably to assemble for the common good shall never be abridged." The historical roots of the right to petition can be traced to the Magna Carta and the Declaration of Rights of 1689. See generally, Sources of our Liberties 21 (R. Perry ed. 1959). The initial question is whether the right to petition, as embodied in our Washington Constitution, contemplates petitioning the legislative, executive or the judiciary branch. At the very least, the right to petition must include petitioning the judiciary, for it is this branch of our system of government that is the final arbiter of our constitution and that has the ultimate power to redress grievances arising from unconstitutional legislative action. Moreover, the judiciary is the ultimate enforcer of common law rights, and this enforcement process can be commenced only if our citizenry has the right to petition the judiciary and invoke its machinery.… Accordingly, we hold that the explicit provision in our constitution preserving the right to petition for grievances encompasses and, indeed, makes fundamental the right of access to the courts.

In addition to a fundamental right being involved in this case, a classification is made on the basis of wealth that is determinative of who will and who will not be afforded access to the courts. The states in the northwestern United States, particularly Washington, are steeped in a historical tradition in which wealth and status are of only secondary importance in our scheme of values.…

It is in this reference-frame that the equal privileges and immunities clause of our state constitution should be construed.… Analytically, this case involves an "intersection" between our equal protection clause and a fundamental right.… We cannot realistically conclude that there is a compelling state interest that justifies opening the gates of the judicial system to the affluent but closing them to the poor.

Next: The impact of King County Housing Authority v. Saylors on Washington fundamental rights analysis.

1 See Schroeter, "Attorney Representation: An Essential Right, Or Not?" Washington State Bar News, September 1999; Schroeter, "The Right to Counsel As Developed in the United States Supreme Court," Washington State Bar News, October 1999. For a more detailed discussion, see Schroeter, "Civil Gideon: If Not, Why Not?" 94-page article presented at Washington State Access to Justice Annual Conference, Jurisprudence Workshop, Wenatchee, Washington, June 27, 1999.

2 Article 6, United States Constitution.

3 See Schroeter, "The Declaration of Independence," Washington State Bar News, July 1999.

4 Many articles have discussed this fundamental right, which also has been characterized as a right to a remedy – an obvious necessary component of access to justice. For Washington comment, see Note: State Constitutional Remedy Provisions and Article I, Section 10 of the Washington State Constitution, 64 Washington l. rev. 203 (1989).

5 76 Wn.2d 589 (1969).

6 85 Wn.2d 391 (1975)

7 87 Wn.2d 732 (1976).

8 84 Wn.2d 135 (1974).

9 407 U.S. 25 (1972).

10 85 Wn.2d 252 (1975).

11 85 Wn.2d 704 (1975).

12 86 Wn.2d 252 (1975).

13 Supra at n. 6.

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