March 2000

ACCESS TO JUSTICE: 
The Future for Access to Justice — We Shall Overcome!

by Leonard W. Schroeter

This is my first Bar News article written in the 21st century. This occasion makes appropriate an appraisal of where the Access to Justice (ATJ) movement has been, and what the future may hold.

Eight previous articles¹ covered the historical antecedents of the fundamental right of access to justice, establishing it as the most basic of all individual rights in our constitutional and common law heritage. We have explored the changing nature of the legal profession, and the responsibility of lawyers and the organized bar in a society where massive disparities in wealth and power exclude many people from meaningful access to equal justice under law. I have described the incompatibility of that reality with the constitutional Scriptures of the Declaration of Independence, the Gettysburg Address, and our constitutional incorporation of charters of freedom, from the Magna Carta to the Universal Declaration of Human Rights. The duty of the judiciary to ensure meaningful access to equal justice has been clear at least since Marbury v. Madison (1803), and remains the most essential safeguard of individual rights. The obvious linkage of that duty to judicial independence has been discussed elsewhere.2 

The last four articles in Bar News explored the right to attorney representation (sometimes referred to as "Civil Gideon"). Most lawyers understand that, absent the right to counsel, the justice system would be effectively closed for most people. The focus on the necessity of competent and committed counsel cannot be overstated. But access to justice can be impeded by many other factors. If the courthouse itself is closed by lack of funding, dockets are overcrowded, or there are excessive court delays, justice is hollow and unreachable. Failure by the legislative or executive political branches to facilitate the installation of independent and competent judges makes separation of powers a mockery. Yet, these increasing impediments to equal justice under law have become widespread and require detailed scrutiny and far-reaching changes in the selection of judges and the corruption of the electoral processes.

In response to the need for coordination of ATJ activities, the ATJ Board was established as an independent body by Order of the Washington State Supreme Court in April 1994 at the request of the WSBA. The WSBA staffs the ATJ Board and supports its mission to promote and facilitate equal access to justice in Washington state's justice system. The Supreme Court's affirmation of that mission statement incorporated principles and goals that recognize that "meaningful access to justice entails the removal of unnecessary impediments within the justice system." Thus, the Board has a responsibility of reporting to the Supreme Court what those impediments are, and how they can be remedied. Consequently, committees of the Board investigate and report to the creating bodies — the Washington State Supreme Court and the WSBA Board of Governors.3 

In order to implement the principle that "meaningful access to justice entails the removal of unnecessary impediments within the justice system," a Systems Impediments to Access to Justice Committee (SIATJ) was formed, chaired by the Honorable Cynthia Imbrogno.4 Its 27-page report in May 1997 identified and developed strategies "to overcome legislative, administrative and judicial rules, practices and procedures that serve as barriers to civil access to justice." Among the impediments identified were "the politicization of the funding process for legal services." The report recognized that there were more than 60,000 case filings a year in Washington for state administrative hearings, and noted that the impediment of "dinosaur statutory administrative procedures which are not user-friendly for pro se parties," and lack of attorney representation at administrative levels impaired fundamental rights. Multiple administrative impediments were investigated and described by the Committee, with recommendations for potential remedies.

The Committee also concerned itself with the possibility of "losing what is already in place," stating that:

Access to justice requires both the enactment of changes to the civil justice system, and resistance to other changes through the civil justice system. During the past decade, there has been a steady attempt to enact tort reform in the form of "loser pays." Loser pays should continue to be resisted by those who are concerned with access to justice.

Thus, the adoption of the so-called "English Rule" and the burdening of the "American Rule" are seen as important access issues, with constitutional implications. In addition, the Committee noted that "access to the civil justice system is also threatened by attempts to weaken the contingent fee system." The Report recognized that impediments arising from the presence, or absence, of civil rules and procedures insensitive to serious disparity of parties in resources and power could significantly impair constitutional rights to meaningful access to equal justice under law. This risk is compounded by "lack of awareness of some members of the judiciary of access to justice issues" and the hostility at times exhibited by legislative bodies that exacerbate, or even create impediments by limiting existing rights.5 

It is not instantly intuitive to think of violations of fundamental rights occurring in administrative proceedings, or as a consequence of civil justice system rules of evidence or procedure. Virtually nothing in law school training focuses on access to justice as a fundamental right. We have previously noted that, although these fundamental principles are synonymous with the basic idea of rule of law, constitutionalism is most often equated with the Federal Constitution. The United States Supreme Court's jurisprudence focuses on Bill of Rights phrases, in their interpretations of "due process," "liberty" and "equal protection," which are all derivative from, or secondary to, the most fundamental right: meaningful access to justice itself. One cannot reach the others if this primary requirement of the rule of law cannot be met.

That is the reason why the fundamental character of access is the first principle of the ATJ Board, the Supreme Court and the WSBA. The second principle is "access to justice is dependent on the availability of affordable legal representation," but that availability is dependent upon adequate funding. Other principles are that ATJ "means access to all forms in which legal rights are determined," that "the legal profession has a special duty to assure that ATJ is recognized as a fundamental right," and that the judiciary "must make ATJ a high priority."

One indicia of judicial concern can be found in an analysis of the Washington State Supreme Court and Appellate Court decisions addressing access to justice.6 From 1969 through 1996, there was an average of approximately one case per year, many of which did not rely upon the right of access, but rather referenced other constitutional provisions. This was despite the vigorous access jurisprudence of Justices Finley, Utter and Horowitz a quarter century ago. Much of the subsequent judicial indifference to this fundamental right can be attributed to the malignant effects of Housing Authority of King County v. Saylors, 87 Wn.2d 732 (1976), which cast a precedential pall on even thinking about access to justice. Lawyers failed to make ATJ an issue, and judges continued to cite Saylors, despite its jurisprudential illegitimacy. But in the five years since In re Grove, 127 Wn.2d 221 (1995) and the Court's creation of the independent ATJ Board, new interest and understanding about this fundamental right has led to a burgeoning of Washington appellate court decisions addressing access. Within the past year, these issues have been raised on an almost monthly basis.

As recently as Miranda v. Sims, et al., (CA Div. I. Jan. 19, 2000), Judge Ellington, in a concurring opinion, stated:

I agree with appellants that the right to access to the courts is fundamental to our system of justice. Indeed, it is the right "conservative of all other rights." Chambers v. Baltimore & Ohio RR Co., 207 U.S. 142, 148 (1907). I also agree with appellants that meaningful access requires representation. Where rights and responsibilities are adjudicated in the absence of representation, the results are often unjust. If representation is absent because of a litigant's poverty, then likely so is justice, and for the same reason.… The majority also is correct that our state supreme court has not viewed the right of access as carrying a right to representation at public expense in the absence of statute, unless fundamental liberty interests are at stake in the litigation.… While I would urge a broader view of the circumstances that call for representation at public expense (see, e.g., Housing Auth. of King County v. Saylors … Horowitz and Utter, dissenting), this case does not present those issues.

The Equal Protection clause of the Fourteenth Amendment was construed to permit racial segregation, from Plessey v. Ferguson (1896) to Brown v. Board of Education (1954). The Saylors precedent has survived for almost a quarter century. The Bench and Bar commitments to the fundamental right of access to justice mandates a frontal attack on Saylors, rather than a strategy of slow attrition and evasion.

As we begin the new century, the most promising trend in the protection of the right of the individual to be able to meaningfully access equal justice under law is in the area of state constitutional challenges to "tort reform." Coined early in the Reagan Administration, this phrase was a euphemism for a concerted policy by corporate America to prevent individuals who were utilizing the common law tort system from securing remedies for harm suffered. Essentially, multi-faceted legislation sought not only in state legislatures but also in Congress was designed to take away the right to a remedy or to curtail that remedy. Legislation included immunizing habitual defendants, capping damages, abolishing or curtailing exemplary damages, avoiding or limiting jury trials, curtailing or abolishing rights to proffer certain testimony or to present certain kinds of evidence, and abolishing or limiting the accountability of the insurance industry and corporate America generally.

Constitutional challenges to "tort reform" did occur, and in some states were successful. In Washington, for example, Sofie v. Fibreboard7relied upon state constitutional provisions such as trial by jury.8 But it is only in the past few years that attorneys for those whose rights have been violated came to understand that their most powerful protection is the fundamental right to meaningful access to the civil justice system. On July 16, 1999, a New York Times front page headline declared, "State courts are sweeping away laws limiting injury lawsuits." The article by William Glaberson began:

More than a decade after states began enacting laws to cut back big jury awards and curtail injury lawsuits, state courts across the country are overturning one measure after another, concluding that Americans have a powerful right to settle their disputes in court. Top courts in such states as Illinois, New Hampshire, Kentucky, and most recently Indiana on July 8th, and Oregon yesterday, have relied on provisions of state constitutions like guarantees of fair access to justice to the courts to strike down all or part of the new laws that were passed under the banner of "tort reform."

The article reported on "dozens of new challenges to such laws" which were working their way to their state supreme courts. It explained that these cases rely upon state constitutional guarantees, such as "open courts" provisions in approximately 40 states. These constitutional provisions are also called "right to access of justice," or "right to a remedy." The New York Times further reported that at least 87 decisions invalidating tort reform laws had occurred in recent years.

On August 16, 1999, the court in State ex rel Ohio Academy of Trial Lawyers, et al. v. Showard, et al.9  held that a broadly sweeping tort reform statute by the Ohio legislature (which had as a primary purpose overruling an earlier Ohio Supreme Court determination that a similar act was unconstitutional) was a violation of multiple provisions in the Ohio state Constitution. Organizations and individuals brought the case as an original action, seeking prohibition and mandamus of Ohio state trial courts from enforcing the legislation. It also challenged the constitutionality of most of the legislative enactments that had broadly amended statutes and rules relating to torts. The Court held that, since the action was an effort to secure enforcement and protection of a public right, there was standing, and that the effort by the legislature to reenact provisions previously held unconstitutional usurped judicial power in violation of doctrines of separation of powers. The legislature was also precluded by state constitutional provisions from depriving claimants of the right to a remedy and rights to a jury and due process. It was the sworn duty of the Supreme Court to uphold the state constitution and implement fundamental constitutional doctrines that were involved. Principles of separation of power required the Court to uphold the rule of law, even though the legislative invasions may have been a reflection of majoritarian preferences. But as the Court held, these are transitory, while the Constitution is enduring and fundamental.10 

The American Tort Reform Association (ATRA), which described itself as "a coalition of more than 300 businesses, corporations, municipalities, associations and professional firms," lamented that:

Because the decision was rendered under the Ohio Constitution, it cannot be appealed to the Supreme Court of the United States. In effect, the Supreme Court of Ohio has created a Catch-22 system that deprives the people of Ohio of their wishes for fundamental civil justice reform. Today's decision in Ohio means that there are now 91 decisions nationwide in which state constitutions have been used by activist courts to overturn liability reform.

The lamentations regarding "activist courts" limiting legislatures by utilizing state constitutionalism is historically and jurisprudentially unfounded. States are the jurisdictions where common law remedies find their primary jurisdiction, and where such remedies are protected by state constitutional access to justice/remedy clauses. This is implicit and explicit in the jurisprudence of federalism. It is historically clear that the ancient and honorable remedial powers of courts of equity to provide effective remedies for the enforcement of legal rights are found in state common law jurisdictions. The idea of equity as part of a jurisprudential system is hardly a recent invention. It dates back at least to Aristotle, who referred to it as "justice that goes beyond written law." The Ohio Court utilized its equitable powers to perform its constitutional functions, just as Justice Marshall did in Marbury v. Madison, to ensure that the other branches adhered to constitutional restraints upon their exercise of power.

In this new century, we should and will ascribe to the right to meaningful access to equal justice under law as the primary, most fundamental right. As disparities between the rich and powerful and the poor and powerless accelerate, we will insist that the full protection of the law be equally provided and secured as a duty of constitutional courts, and as a responsibility of government at all levels of the justice system. We will recognize that tort actions are an integral part of a constitutional system of great antiquity, basic to the common law and designed to provide remedies for those whose rights have been violated, whether by government or private abuses of power. As a part of our understanding of government of the people, by the people, and for the people, we will apply our American jurisprudence where the triers of the facts are the jury, and the constitutional duty of the courts is to provide a remedy, and permit the parties to present their evidence.

These are not simply projections for the future. They are pressing mandates for this country if it is to be the last best hope of mankind.

NOTES

1.These publications can be seen at http://www.wsba.org/atj/publications/

2. See "KCBA Attacks the Erosion of Judicial Independence," King County Bar Bulletin (Fall 1999), and "Civil Gideon: If Not, Why Not?" Presentation at: Washington State Access to Justice Annual Conference, Jurisprudence Workshop, Wenatchee, Washington, June 27, 1999.

3. The Board's Jurisprudence Committee, in implementation of its roles, has explored and reported on basic ATJ principles such as "access to justice as a fundamental right," on the subject matter of the articles published in Bar News, by conference, and by seminar papers, reports and studies.

4. United States Magistrate Judge in the Eastern District of Washington.

5. The detailed analysis of the SIAJC can be found in the Report and subsequent reports of the Committee. Requests can be made to the ATJ Board at the WSBA.

6. Hugh Spitzer compiled a compilation of a "Jurisprudence of Access to Justice Subject List of Those Cases" several years ago for a state constitutionalism law school class he taught. A copy will be provided upon request.

7. 112 Wn.2d 636, 771 P.2d 711, 780 P.2d 260 (1989).

8. Washington Constitution Article I, Section 21, reads: "The right of trial by jury shall remain inviolate."

9. 86 Ohio St. 3d 451, – N.E. 2d –, 1999 WL 617856 (Ohio).

10. The Ohio opinion, along with the recent Oregon, Indiana and Illinois Supreme Court cases will be the subject matter of a subsequent article.

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