January 2000

POINT/COUNTERPOINT: Fundamental Rights and the Role of Government

I am intrigued by the subject of constitutional law and was fascinated with Mr. Schroeter's article in the September Bar News. This article is intended as a response thereto and a discussion of the broader question of the role of government in a democratic society.

To restate Mr. Schroeter's thesis: the right to counsel is a "fundamental right" derived from the basic purpose and function of government to preserve the principles of "due process of law" and "equal protection of the law." Ergo, the government should provide lawyers for all indigent civil litigants at public expense. In support of this thesis, Mr. Schroeter first cites a 1395 English law which called for the appointment of counsel to represent the poor "which shall do their duties without any rewards." Thus, the English common law cited was really just a precursor to our present pro bono system, not a precedent for government-paid lawyers. Secondly, Mr. Schroeter points to several European nations which have enacted laws providing for "free attorneys to indigent persons." In my mind, however, that's almost reason enough in itself for us not to do it in America. We separated ourselves from Europe a long time ago for good reason, and we should closely scrutinize any invitation to imitate the institutions of European nations prone to embrace socialist methods for solving problems. Indeed, Mr. Schroeter's statement that "access to justice" via free lawyers is not a "welfare program" belies the fact that that's exactly what it is.

We in America set up a political system based on democracy and an economic system based on capitalism. Individual freedom and accountability are the hallmarks of the American way and have produced the most powerful and wealthiest nation in the history of mankind. With good reason, we look askance at any government program designed to "enhance" the rights of its citizens, because we know that government by its very nature represents raw power — a ravenous beast that can turn on us at any moment. Thus, the federal and state constitutions, which clarify two very important concepts: (1) government is not the source of our rights, as those rights are inherent in our very existence as human beings, and (2) government, as our appointed trustee charged with safeguarding certain rights, is granted expressly limited powers.

Thus the question: what rights do we consider so fundamental as to justify granting government special powers to enforce? The federal constitution articulates three: life, liberty and property. All other "rights" are appendages thereto and serve to give form and shape to those fundamental rights. Article I, Section 2 of the Washington State Constitution articulates the same three basic rights (though there are other "rights" set forth in the State Constitution's Declaration of Rights). But even in the case of those fundamental rights and other ancillary rights such as due process and equal protection, they are embodied in the constitution solely as a reminder of the limitations on the power of government to interfere with those rights, not as a mandate for government to enforce those rights as between private contestants. So what is the government's constitutional role in the resolution of disputes between individual citizens? In other words, to what extent should the government constitutionally exercise its power and dedicate its resources to the resolution of purely private disputes among its citizens?

Currently in Washington state, the government provides a free forum (except for the filing fee, which can be waived), a jury in cases at law (as opposed to cases which are equitable in nature), a means for compelling the attendance of witnesses, a record of the proceedings, and representation by an attorney in all civil cases where confinement (loss of life or liberty) is a possibility. See Tetro v. Tetro, 86 Wn.2d 252, 544 P.2d 17 (1975). The Washington State Supreme Court has also held that there is a constitutional right to counsel at public expense for indigent parents in dependency proceedings, but again, that is designed to protect the individual against the power of the government to terminate the parent/child relationship. See In Re Myricks, 85 Wn.2d 252, 533 P.2d 841(1975).

Where an alleged property interest is threatened by a private party, rather than the government, the question of whether an indigent litigant has a right to counsel at public expense has been answered in the negative by our state's Supreme Court. In In Re Grove, 127 Wn.2d 221, 891 P.2d 1252 (1995), the Court held, in the context of a worker's compensation claim, that where "the interest at stake is only a financial one, the right which is threatened is not considered 'fundamental' in a constitutional sense." Citing United States v. Kras, 409 U.S. 434, 93 S.Ct. 631 (1973). See also Housing Authority v. Saylors, 87 Wn.2d 732 at 740-41(1976) (no constitutional right to appeal and thus no right to counsel on appeal in civil cases generally). The Court went on to hold that even though the government may waive filing fees and other costs for the benefit of indigents, "this does not mean that a state acts unfairly because it does not provide counsel and public funding at every stage of every lawsuit." In Re Grove, 121 Wn.2d at 239.

The Grove Court also dealt with two other consolidated cases involving publicly funded counsel (one involving termination of parental rights in a dependency proceeding and the other involving commitment of a person accused under the Sexually Violent Predator Act). In both cases, the Court held that the indigent litigants were entitled to attorneys at public expense, but the court reached its conclusion based on two separate statutes providing for the appointment of counsel for indigents, and thus did not reach the issue of whether they had a constitutional right to counsel. In In Re Myricks and Tetro, cited above, where the Court previously held that in such civil actions where "fundamental rights" were threatened by the government, indigent litigants do have a constitutional right to counsel.

Does government have a constitutional obligation to provide free attorneys to indigents in all civil cases involving purely private disputes over "property" interests? I would suggest that the government already does enough to provide representation for indigents without setting up another welfare program to serve the dual purpose of providing full employment for lawyers. Our judicial system is already so over-taxed (no pun intended) that providing free lawyers for anyone claiming to be "indigent" in every civil dispute that might arise would completely overwhelm our system of justice and lead to utter collapse. (As it is, we're almost there in Pierce County.) The real question is whether we consider private disputes over money (property disputes) so fundamental in nature as to impose upon government the obligation to provide free representation to those who cannot otherwise afford to fight over it. It is an interesting irony — give people the money (through free lawyers) to fight over something they didn't have in the first place. Is that how we take care of indigents? Or would the money be better spent educating and training them in the skills necessary to compete and succeed in a capitalistic economy? I for one am not prepared to appoint government in loco parentis to resolve, at absolutely no charge, every dispute over property that might arise between private parties. Indeed, many problems go away by themselves because they're "not worth fighting over." There is a certain social utilitarianism associated with having to pay to fight.

What, if anything, can or should be done to assist indigent civil litigants with "access to justice"? Several possibilities emerge. The Bar, regulated primarily by the State Supreme Court, could institute a pro bono program requiring some participation by all attorneys in the interest of community service. Maybe some CLE hours could be satisfied by providing pro bono services.

Secondly, in the interest of fairness, where a litigant is pro se due to indigence, the court could treat the matter as a "small claims" case by referring it to an arbitrator and requiring both sides to present their case pro se.

A third possibility might be some sort of "loser pay" arrangement similar to that embodied in RCW 4.84.250 and CR 68. Such an approach requires the litigants to scrutinize the merits of their case and provides a means of shifting the cost of litigation for the benefit of the prevailing party; if that party happens to be indigent, it would thus provide a means of defraying the cost of an attorney.

A fourth possibility might be to alter the current rigidly adversarial approach to justice. Courts of law with all their procedural and evidentiary rules and interpretations have almost become arenas of sophistry and theatrics, where justice is a casualty rather than an achievement. If judges were specialists in certain aspects of the law, what would be so difficult about having parties to a controversy simply tell their side of the story to the judge who would then render a decision in accordance with the law? All courts would then essentially become "people's courts."

Finally, there is always the possibility of insurance — a privately funded program providing for representation in those cases where an otherwise indigent litigant could not afford retained counsel. Ideally, that is the theory behind insurance, to spread the risk and provide for backup in case of emergency.

In summary, the fundamental rights articulated in our federal and state constitutions are intended as limitations on the power of government to interfere with those rights, not as a mandate for government to enforce those rights as between private litigants. Nevertheless, in the case of certain civil disputes involving potential loss of life or liberty enforceable by the government, publicly funded representation is provided. In other types of civil disputes involving only property interests between private parties, however, the government has discharged its obligation to safeguard its citizens' "fundamental rights" by providing a free tribunal to hear and resolve such disputes. There are plenty of other ways to help indigent persons have their day in court without America taking another step toward socialism and providing government-paid lawyers for "indigents" in all civil cases.

Brian L. McCoy, a 1979 graduate of the University of Puget Sound School of Law, has a private practice in Puyallup. His areas of emphasis are personal injury, malpractice, insurance and civil litigation. A former Green Beret, Mr. McCoy is the WSTLA Pierce County Roundtable Chairman and is listed in Who's Who in American Law. He serves on the Bethel School District Task Force Committee on AIDS and is on the Board of Directors for the East Pierce County Chamber of Commerce.

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