Injustice anywhere….

“Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly.” Martin Luther King Jr.

This quote taken from King’s 1963 Letter from the Birmingham Jail reminds us that in many ways, some obvious and most others less obvious, we all inhabit the same mortal coil. Each of us lives messy, uncertain lives, beset by challenges and threats. Those of us blessed with a variety of resources and experiences are better able to meet these challenges and threats than are those with fewer, sometimes far fewer resources.

To the poor, with scant resources than many of us possess, a court action may be an insurmountable challenge. Entering by themselves into a strange world, where the inhabitants speak a different language, and where an authority renders a judgment that can and will be enforced by law enforcement officers is often a daunting experience for the poor. Let’s call this strange world “Courtland.”

Courts resolve disputes between two sides. By way of example, when a landlord seeks to evict a tenant, he doesn’t summarily kick the tenant to the curb. He files a complaint with a court and ignites the legal machinery that will continue until the dispute is resolved.

Unless he’s an attorney, it’s unlikely that the landlord has any better understanding of Courtland‘s culture than does his tenant. However, it’s likely that the landlord does have one advantage that the tenant does not - the resources necessary to retain counsel who knows the rules and speaks the language of Courtland.

Thanks to two friends in Albany, New York, I was alerted to an Editorial that appeared in the January 11, 2023 edition of the Albany Times Union. Allow the editorial speak for itself:

“One statistic says it all about the imbalance low-income people face when they’re threatened with losing their home: According to city data, 90 percent of the time, landlords in eviction cases in Albany show up with a lawyer. Only 1.3 percent of tenants do.

Now, the city and county of Albany are trying to address that disadvantage. Just up State Street, the state Legislature ought to do the same.”

Citing the difference to the guaranteed right to an attorney in criminal matters with no such right existing in civil matters, Albany city and county officials have established a pilot program that will provide low-income people with representation by attorneys at the Legal Aid Society of Northeastern New York. The initiative will also connect tenants with an eviction-intervention specialist through the United Tenants Association, and will also pay Albany Law School to train court advocates and represent tenants.

The cost of this initiative will be $320,000 with the city, county, and CARES of NY (a non-profit dedicated to ending homelessness) sharing in paying the cost. But language is important here. Instead of “costs” we should use the word “investments,” investments in people that can result in a return on investment. The investments not only promise greater returns in the form of safer and more humane communities, but will provide greater confidence in the fair administration of justice.

Why is there no guaranteed Constitutional right to counsel in civil matters? In Lassiter v. Department of Social Svcs., 452 U.S. 18 (1981), the Court held that there was no right to counsel with the possible exceptions where an adverse outcome may impact a “liberty interest” or a fundamental right. Lassiter narrowly cast a “liberty interest” as the physical incarceration of a party, and since the issue raised in Lassiter touched on the right to parent a child, subsequent court decisions at all levels have narrowly applied fundamental liberty interest to parenting disputes.

I wrote extensively about the Lassiter decision in my book, Access To Justice On The Outskirts Of Hope. For reasons discussed in my book, this decision is an abomination, not because it held a position that I do not share, but because when it wasn’t being condescending to Ms. Lassiter it just made no sense. Again, I invite you to read my critique of Justice Stewart’s holding.

For the past 42 years, the federal and state courts have embraced the narrow Lassiter construct in court and administrative hearings. In instances where they have been raised, courts have held that while there may be an “interest” in retaining an economic benefit or a housing leasehold, these do not rise to the required level of liberty interests or a fundamental right. This is an obscene diminution of the rights of people who cannot access legal services.

It’s not just obscene, it’s a gross injustice, one that affects each of us. I live in Rhode Island where just a few years ago the ratio of attorneys per residents was one attorney for every 40 Rhode Islanders. The ratio of attorneys for low-income Rhode Islanders is one for every 10,000 people. This isn’t just an obscene injustice, it is also a gross embarrassment.

Many states have made efforts to address this injustice. Some, like New York, have introduced “Civil Gideon” legislation. The reference in the editorial to “Just up State Street” is to legislation introduced in the New York Assembly - Assembly Bill A291 introduced on January 4, 2023. This legislation not only details the legislative findings to support this bill, but it also creates the basis of the necessary framework to ensure the attainment of its goals if the bill ever is enacted into law.

Rhode Island, as of this writing, has no such legislation pending in its state legislature, nor is it likely to as the session unfolds this year. Nor has Rhode Island an Access To Justice Commission (ATJ) like New York and the majority of other states.

By way of comparison, the New York ATJ has attained $100 Million in Dedicated State Funding for Civil Legal Services since its formation, with 82 legal services organizations still receiving funds In 2022. No such result even by scale of size has been attained in Rhode Island.

So I don’t ignore our contiguous neighbor, Massachusetts since the beginning of its ATJ has developed “the Justice for All Strategic Action Plan, in collaboration with a wide range

of stakeholders, to improve access to justice in the Commonwealth, focusing on housing, family law, consumer debt, and the access to justice "ecosystem," i.e., information resources and support for litigants who cannot afford an attorney for their essential civil legal needs.”

To be clear, Connecticut, New Hampshire, Vermont and Maine, along with Massachusetts, have versions of ATJs.

If anyone is the least bit curious as to the possible impacts of ATJs, you can read them yourself at

https://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls-sclaid-atj-comm-updates-3-24-22.pdf

I used to think that Civil Gideon legislation and ATJ were primarily legal issues. I regret to say that I was wrong. It is first and foremost a political issue requiring political leadership to address these issues. In Rhode Island I discovered both were non-extant. This is also something I detailed in my book, along with an analysis of why there is little to no leadership in the legislature or the judiciary to provide access to Justice for our most vulnerable residents.

Given the makeup of our current federal Supreme Court, it would defy credulity to think the Court would revisit the holding in Lassiter. That’s why it is vital for leaders in each of our states, especially those like Rhode Island that has done little to nothing in this area, to find and develop the political will to develop a community consensus to provide meaningful access to the courts for our most vulnerable residents.

New York State is doing its best in taking steps to eliminate injustice for its residents. As I have previously written, it’s astounding that nobody in Rhode Island has even brought a case to activate an English common law provision codified into our General Laws centuries ago.

There is activity throughout the country to make the Courts more accessible. But unless more is done and done quickly, to millions of people in our states and country as a whole, the admonition of “Equal Justice for all” will be no more than an empty promise and a hollow hope.