January 2000

POINT/COUNTERPOINT: Obstacles to Civil Gideon Part II: The Washington State Experience

This article continues a survey of access-to-justice jurisprudence in Washington state. The first installment appeared in the November 1999 issue of Bar News.

The second Carter v. University of Washington case[1] followed a remand factual determination by the trial court that the three requirements imposed by the court in Carter I (of indigency, good faith and probable merit) were met. Now Carter was before the Supreme Court for the order waiving all costs of his appeal. In the meantime, however, Justice Finley died and was replaced by Justice Dolliver, who delivered the opinion for the Court in Carter II. Carter's motion was denied, finding that the criteria of "probable merit or lack of frivolity" was not met. In the view of Justice Dolliver, the appellant had "very little or practically no chance of prevailing on the merits."

Four months after Carter II, the Washington State Supreme Court decided Housing Auth. of King County v. Saylors,[2] taking the opportunity to overrule its historic Carter I opinion reached 18 months earlier. This was an appeal by a tenant from a judgment in favor of the Municipal Housing Authority in an unlawful detainer action. The tenant had moved for an order of indigency and for the expenditure of public funds to pay the costs of prosecuting the appeal. The shift in Court personnel seemed to mimic the Burger Court's anti-poverty virus, which now had reached the chambers in Olympia.

Ms. Saylors conceded that she was given a hearing on the question of good cause for eviction required by law, was given statutory notice to vacate, and did not deny that there was in fact good cause for eviction. It was, therefore, not unreasonable to conclude that no constitutionally cognizable injustice had been done. For that reason, Justices Utter and Horowitz concurred in the results, with Justice Horowitz authoring an opinion that may well be the most balanced and comprehensive analysis of the constitutional jurisprudence of poverty and justice authored by our Court. It eloquently stated the jurisprudence of our constitution and remains an instructive text for those concerned with access to justice.

Because the opinion was a concurrence in the result, it has been generally ignored, to the detriment of legal understanding and public interest. The Court's opinion sought to demonstrate the error of Carter I, claiming that it was "without foundation in law and contrary to public policy." The basis for the Court's opinion was that right to counsel was not available to litigants making claims in "the field of economics and social welfare." The majority reasoned that there could not be a fundamental right involved if the indigent person was seeking to secure justice in fields such as employment, housing or welfare rights. The majority denied that there were equal protection issues or state public policy considerations arising from being poor, concluding that this was a legislative question rather than one for courts.

Justice Horowitz's opinion is not only scholarly and buttressed by historical and bibliographical references, but its powerful reasoning is as trenchant and persuasive today as it was a quarter of a century ago. His opinion demonstrated that it was the "state whose duty it was to provide for the peaceful settlement of disputes in a manner conformable to justice under law." Justice Horowitz explained:

Carter charted a new course that would better protect an indigent's right of court access to pursue a civil claim of probable merit. It substituted for the notion of court discretion to permit court access on appeal, the principle that the state was constitutionally required to grant court access 'to all regardless of economic status.'… The right of court access for purposes of appeal was part of the general right of court access. Construing article 1, sections 4 and 12 of our state constitution, it held an indigent's access to the courts is itself a fundamental interest or right properly protected by law; that the legitimacy of legislative classification abridging the right of court access was to be determined under article 1, section 12, so that only a compelling state interest would justify any such abridgement; that 'classifications based on wealth are indeed dubious'; and that there is not 'a compelling state interest that justifies opening the gates of the judicial system to the affluent but closing them to the poor.'

… The right of court access in a civil case was itself a fundamental right and the right did not depend on its subject matter.

… [T]he civil courts of the United States and each of the States belong to the people of this country and that no person can be denied access to those courts, either for a trial or an appeal, because he cannot pay a fee, finance a bond, risk a penalty, or afford to hire an attorney. . . . I believe there can be no doubt that this country can afford to provide court costs and lawyers to Americans who are now barred by their poverty from resort to the law for resolution of their disputes. This court, in construing our own state constitution, may, but is not required, to follow the federal interpretations or corresponding provisions of the federal constitution. A state does not lack power to protect its people in a manner more protective of their rights under its state constitution than is permitted by the federal cases cited in construing the Fourteenth Amendment. The Supreme Court of the United States has recognized that it has no right to review a state court's interpretation of its own constitution…. State courts have interpreted their own constitutions differently in a manner more protective of individual's rights than the interpretations of the Supreme Court of the United States of corresponding provisions of the federal constitution.

The decimation of Carter by Saylors in 1976 resulted in a dismal pall on Washington State's jurisprudence. Inappropriate application of United States Supreme Court holdings, which ignored the mandate of access to justice jurisprudence, was compounded by utilization of the uncomfortable criteria for decisionmaking found in Mathews v. Eldridge.[3] There, the Court enunciated the tests "to determine when due process requires certain procedural safeguards," for example, right to counsel. The balancing tests, in and of themselves, are a rejection of fundamentality.

Consequently, there were few Washington appellate court decisions in almost a quarter of a century. The fundamental character of access to justice was also unfortunately eroded by Washington courts during the lean years following Saylors, as evidenced by In re Giordano[4] and Ford Motor Co. v. Barrett.[5] But John Doe v. Blood Center[6] was an interesting case because it recognized the relationship of the discovery process in civil actions as closely connected to meaningful access to courts. To Justice Brachtenbach, the discovery process was essential in an action seeking damages for negligence from a blood center. The Court stated:

Plaintiff has a right of access to the courts.[7]  In this civil case that right of access includes the right of discovery authorized by the civil rules.…Our constitution mandates that "[j]ustice in all cases shall be administered openly, and without unnecessary delay." Const. art. 1, § 10. That justice which is to be administered openly is not an abstract theory of constitutional law, but rather is the bedrock foundation upon which rest all the people's rights and obligations. In the course of administering justice the courts protect those rights and enforce those obligations. Indeed, the very first enactment of our state constitution is the declaration that governments are established to protect and maintain individual rights. Const. art. 1, § 1. Const. art. 1, §§ 1-31 catalog those fundamental rights of our citizens. The drafters of our constitution placed such great importance upon rights that they provided: "A frequent recurrence to fundamental principles is essential to the security of individual right and the perpetuity of free government." Const. art. 1, § 32. It is important to note that our consideration here is of the right of access.

The Court's opinion cited Carter and ignored Saylors, except to state, "Unfortunately, the court did not explore the rationale for its conclusion."

The current status of our Washington State Supreme Court's right to counsel jurisprudence is best reflected by the carefully crafted opinion in In re Dependency of Grove.[8] It reflects the consensus mustered four years ago by Justice Guy, now Washington's Chief Justice. The questions reviewed here were seen as important and troubling. The Court consolidated three cases to "begin the process of clarifying the standard to be applied in determining when an indigent litigant's civil appeal will be funded by the state of Washington." Justice Guy initially stated, "This court has not published an opinion in this area since 1977." On its facts, Grove does not involve the right to counsel at any stage of justice system processes, but is limited to appeals. Furthermore, it only concerns itself with documented indigency and appellate costs and expenses, not payment to counsel. Lastly, the question is limited to funding by the state of Washington — the people.

The Grove case included juvenile court dependency action appeals, a petition under the Sexually Violent Predator Act (which requires evaluations as a part of the statutory proceeding), and review of a jury verdict resulting in the termination of workers' compensation benefits. All parties were indigent. Each asked for counsel to be appointed to represent them at public expense. Justice Guy began:

Increasingly the cost of civil litigation weighs against easy access to our courts. The question of who pays for the efficient use of the appellate system is a difficult one. Where fundamental constitutional rights are not threatened, the answer to this properly belongs with the legislature.…Because public resources are limited and the number of indigent criminal cases is high, the State is forced to prioritize those cases in which the public will be required to fund civil appeals. (Emphasis in original.)

The Court acknowledged that it is its duty to resolve issues involving fundamental constitutional rights. It is outside the power of the legislature. Therefore, the fiscal issues allocated to legislative judgment cannot be relevant considerations in judicial decisionmaking. The Court recognized a built-in conflict for the judicial branch, as they must look to the legislature for funding their own operations and salaries.

In two of the three cases, where the parties had statutory rights to counsel at "all stages of a proceeding," the legislature had already determined the right included representation through an appeal. The Washington State Supreme Court therefore held indigent civil litigants have a right to counsel on appeal at all stages of the proceeding. The Court also held that civil litigants need not prove a constitutional right to appear at public expense, nor demonstrate probable merits of their claim to appeal at public expense. Issues of costs, filing fees and other expenses are covered by the policy of "effective legal representation." Thus:

The right to counsel without a corresponding right to present a record to the reviewing court is an empty right. The legislature's intent… would be thwarted were we to hold that the statutory right to counsel on appeal did not include the instruments necessary to permit effective presentation of the issues. … Effective legal representation contemplates the public payment of expenses and fees necessary to provide an adequate record and to present the appeal.

The question that was not answered was whether these rights, which exist because they flow from the fundamental right of access to justice, would have provided a remedy if they had not been implemented by legislative action. What if the legislature had ignored this problem? What if there were no statutes or rules on the subject? The problem would be the same. The issue for the Court is much easier in a state where the legislature is responsible and accepts their duties to protect individual rights. But what if they don't? Is there no constitutional right without legislative blessing? Is it not essential that courts provide remedies if legislatures don't provide implementation?

Justice Guy stated that these issues were "governed by" In re Welfare of Lewis.[9] There, an indigent minor charged with committing a crime sought to appeal an order of the juvenile court declining jurisdiction. He claimed a constitutional right to appoint counsel and expenditure of public funds for the purpose of appeal. Justice Utter, for the Court, held that the petitioner has that constitutional right and thus directed the entry of an order providing appointed counsel and the expenditure of public funds to facilitate appellate review. Justice Utter stated:

Equal protection requires the state to provide appointed counsel for appeal and a right of appeal at public expense in those classes of cases in which indigents are entitled to appointed counsel at trial level and right of appeal is provided. This principle was developed in criminal cases, but it applies to other disputes involving matters of such a fundamental nature as to require appointments of counsel at the trial level, such as juvenile delinquency proceedings, and proceedings concerning possible permanent deprivation of parental rights.

The Washington State Supreme Court, in its rulings in In re Grove, protected the fundamental right of meaningful access to justice in many ways that exceeded the rulings of the United States Supreme Court. In part, this is because of its own rules and the greater rights sensitivity of our legislature as compared to Congress. Yet the Washington State Supreme Court is still much too fearful of the legislature, and too intimidated by the United States Supreme Court and the political rationalizations that they have imposed on straightforward fundamental rights that should not be in controversy at the end of the twentieth century.

Recent cases have been reported in our Court of Appeals and the Washington State Supreme Court dealing with right to counsel and access to justice. In each of them, the jurisprudential confusions arising from more than a quarter of a century of internecine judicial struggle over basic rights jurisprudence has marred these decisions. None appear to clearly recognize that the essential character of the fundamental right of access to justice is that the right bearer must (if those rights are to be meaningful) be able to have, in all stages of the justice system, the opportunity to be heard, to be able to present his case,[10] to be able to secure a remedy,[11] and to not be disabled by his poverty from full and meaningful participation. Generally, this right exists, whatever the subject matter of the lawsuit is, whether it be criminal, civil or hybrid, as some often are. Clearly, if the cause being advanced is civil rights or civil liberties, this by itself may make the constitutional deprivations more palpable and more clearly facilitate the assistance of the Court because it more easily understands familiar, concrete constitutional violations. But in most of the cases, it is the denial of the access that is the violation of right, whatever other constitutional handle we choose to apply to the underlying issues involved.

There has been a failure by attorneys to advocate, and judges to enunciate, the carefully reasoned jurisprudential basis for judicial implementation of meaningful access to justice. It may well be that in some situations, justice can be secured by a party acting pro se, although these must be few and far between. In some situations, there are mechanisms apart from court-appointed counsel or government-paid counsel that will still make it possible for meaningful access to be secured by indigent parties. Certainly, there are meaningful solutions and approaches in existence such as the legal services programs, the contingent fee system, court-awarded or statutorily awarded attorneys' fees, effective pro bono assistance and a host of other legal reforms that will not necessarily place the burden of justice directly upon the taxpayer. But whatever else is true, as commentators and courts have said for much of this century, equal justice under the law is too precious to not be a major priority of society and an obligation of government and its citizens.

Unhappily, the fundamental right of access to justice is still wrestling for public and judicial legitimacy, although it has been declared in the Magna Carta, English constitutionalism, the American Scriptures, explicitly or implicitly in all of our constitutions, and often clearly in our courthouses, which proclaim their existence for the purpose of "Equal Justice Under Law."

Our nation and our justice system have survived Dred Scott, Plessey v. Ferguson, Lochner and other incomprehensible, cruel, political, arrogant judicial decisions, of which Saylors was one. No constitutional case is ever settled which involves human freedom and decency, until it is decided in accordance with our "American Scriptures."

The Washington State Constitution incorporates these "fundamental principles."[12] Because we believe that a frequent recurrence to "fundamental principles is essential to the security of individual rights and the perpetuity of free government," in the next few months we will bring current an analysis of the most recent access to justice decisions of the highest courts of our state and nation.

NOTES

1. 87 Wn.2d 483 (1976).

2. 87 Wn.2d 732 (1976).

3. 424 U.S. 319 (1976).

4. 57 Wn. App. 74 (1990).

5. 115 Wn.2d 556 (1990).

6. 117 Wn.2d 772 (1991).

7. Justice Brachtenbach cited the opinion, supra, at Note 4.

8. 127 Wn.2d 221 (1995).

9. 88 Wn.2d 556 (1977).

10. See Edward Imwinkelreid, "The Blockbuster Adams Decision: The Constitutional Right to Present Evidence," TRIAL (October 1998). Imwinkelreid is a Law Professor at the University of California, Davis. See the article for other citations including an earlier article by the author in 1990 Utah L. Rev. 1.

11. See Ned Miltenberg, "The Revolutionary 'Right to a Remedy,'" TRIAL (March 1998), and authorities cited in this short article. Miltenberg is an Associate Director and Robert Peck is the Director of the Association of Trial Lawyers of American Legal Department. They have assiduously developed a remarkably documented research base, and produced in multiple appellate briefs an extraordinary impetus for preserving right to a remedy and access to justice, generally.

12. Constitution of the State of Washington, Article I, Section 32.

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