Anyone who has read pretty much everything I’ve written in the past seven years - guest columns to local news outlets, a book, posts on this blog - knows that I have been laser focused on the absence of an Access to Justice (ATJ) Commission in my home state of Rhode Island. Last month I posted a comparison between New York State and Rhode Island regarding providing attorneys to low-income parties facing court action. I also commented on the presence of a robust ATJ Commission in New York and the lack of such a Commission in Rhode Island.
Imagine my shock and chagrin when I was recently informed that I was … wrong! My informant assured me that there is an ATJ Commission in Rhode Island. Like most of us, I hate being wrong! Therefore, imagine my relief when I determined that I, in fact, was not wrong.
My informant was the victim of an unintended, or possibly intended, sleight of hand. Let me explain.
In the March 21, 2013 edition of the Providence Journal (by-line Katie Mulvaney), it was reported that the American Bar Association awarded $18,000 to the RI Judiciary to be put toward the creation of an Access To Justice Commission. At the time of the grant, it was noted that 27 states plus the District of Columbia had ATJ Commissions. (Now, according the ABA, in 2023, there are seven states without an ATJ Commission, with Rhode Island as one of the not so magnificent seven.) According to the article, “They (the Commissions) are intended to boost resources for civil legal services, reduce barriers that prevent equal access to justice by low- and moderate-income people, and increase the commitment to pro-bono work.”
”Another goal is to increase awareness about the legal needs of low-income people and benefits of ensuring they do not go unmet.”
As highlighted in my book Access To Justice On The Outskirts Of Hope and as described by the newspaper, the purpose of the grant along with the structures, functions, and purpose of ATJ Commissions are accurate. In my book, I identified five states, including Delaware as being in similar size to Rhode Island, as examples of fulsome ATJ programs. And in the case of Delaware, which at the time I wrote my book had just embarked on the process of creating and implementing its ATJ program, there was a comprehensive approach to meeting the legal needs of its poor and disadvantaged.
Keep this in mind as we move forward.
At a meeting, also recounted in my book, in November 2014 (more than 18 months after the award was announced) leadership from my agency (The Rhode Island Center For Law And Public Policy, Inc.) met with Rhode Island Supreme Court Chief Justice Paul Suttell and a fourth party (unnamed by me) who was known to all. The purpose of the meeting was to elicit the Chief’s support for legislation which is recounted in detail in my book and is irrelevant to this present discussion.
As is not unusual in meetings, our discussions veered off into related tangents wherein the Chief looked toward the fourth member and said, “Now that the (2014) election’s over, we should start on that Access To Justice Commission.” A bit taken aback, I could only say that if they were going to organize the Commission I’d like to help.
So over a year and a half since the ABA award, the Judiciary had not begun the basic work necessary to form an ATJ Commission. Keep this meeting in mind going forward. As an aside, as I write this over 8 years after that meeting, I have yet to have been contacted about my offer to help.
From the summer of 2016 (over three years after the award) through February 2023, almost ten years to the month of the granting of the award, I have in my submissions to GoLocalProv, my book published in 2020, and my posts on this blog asked where our ATJ Commission was? I have looked for any accounting of the expenditure of the awarded funds, looked for a report discussing the feasibility or unfeasibility of establishing an ATJ Commission, and looked on-line to search for any Commission - all for naught.
If the above is true (it is), then where did the narrative that we had an ATJ Commission come from? Depending on your level of cynicism, you can decide the motives for what comes next.
On November 15, 2021 - seven years and a day after our meeting with the Chief Justice - a News Advisory from the Rhode Island Judiciary announced the formation of an Access to Justice Office! One might think that this is the Rhode Island ATJ Commission. If so, one would be wrong.
Let me quote from the Advisory.
“Three vital court services related to access to justice have been brought under one umbrella with the creation of a new office within the Supreme Court.
The Access to Justice Office, newly located in the Noel Judicial Complex in Warwick, will oversee the Judiciary’s compliance with the Americans with Disabilities Act (ADA), the Office of Court Interpreters, and services for self-represented litigants. The latter has been of particular interest to Supreme Court Chief Justice Paul A. Suttell as more people choose to represent themselves in domestic, evictions, and small claims cases.”
“Among the Judiciary’s challenges that have been starkly evident to me as Chief Justice is the rising number of self-represented litigants in our courts and the need for equal access to justice for our citizens with little or no financial resources in civil matters,” Chief Justice Suttell said. “While we often think of equal access as being for those litigants who cannot afford to pay for legal representation, it also includes prompt and effective language services for those who do not speak or understand English, as well as accommodations for people with disabilities. This new office will help to coordinate these and other attributes of true access to justice.”
Who is administering this Office? “The Access to Justice Office is being coordinated by staff attorney Tamera N. Rocha, who most recently had been in the Supreme Court Office of General Counsel. ‘During her time in the Office of General Counsel, Ms. Rocha worked regularly in all three of these key areas serving the public by facilitating their access to the courts‘…”
One last point from the advisory: “In 2019, there were 36,885 cases in the state court system in which at least one party to the case was self-represented at any given time during the life of the case. The overwhelming majority – 33,815 cases – occurred in the District Court, which hears small claims, housing, employment, and other types of civil cases. The Family Court, which hears divorces, custody and child support matters, had nearly 2,300 such cases in 2019. The Access to Justice office will be a dedicated resource to enhance the Judiciary’s services to self-represented litigants. Focus areas will include the simplification of court forms, improving in-courthouse interactions, and the provisions of self-help resources. (Emphasis mine)
There is so much to unpack here. With all respect to Attorney Rocha, who I don’t know but who I am certain will sincerely perform her duties in this office, and while all these combined functions are important to those the court serves, this is NOT an ATJ Commission. ATJ Commissions focus on increasing awareness of and providing legal services to low-income individuals and families through a variety of means. Instead, the new Office seeks merely to “enhance” the Judiciary’s services to self-represented litigants.
In the Advisory, as noted, one of the means of enhancing services to self-represented litigants is to simplify court forms. In concert with other efforts to serve the legal needs of low-income litigants (e.g., counsel, direct representation) “simplified” forms have limited utility. When primarily used to address the needs of low-income individuals, these forms have even less utility.
There are numerous supports for my assertion but perhaps the clearest statement comes from Fern Fisher, Deputy Chief Administrative Judge for New York City Courts who also served as the Director of the New York State Courts Access to Justice Program. In a paper published by New York Law School, she wrote that forms written at an eighth grade level will not help those - a large number of low-income parties - with only a fifth grade level of reading comprehension.
I and many of my former associates can attest to Judge Fisher’s statement. But lost in all this is a lack of recognition that going to court is more than filling out and filing forms. Lost in this is a low-income party’s lack of knowledge of law and procedure, both vital to adequately presenting a case. Sure, she can get a hearing thus “access,” but can she get a meaningful hearing? That’s the question ATJ Commissions seek to address.
Finally, regarding the comments attributed to the Chief Justice regarding the needs of self represented litigants: he said virtually the same thing in November 2014. In fact, if it was as “starkly evident” to him when we met in 2014 as it evidently is today, it begs the question of whether this a sincere effort to meet the needs of low-income litigants or whether this widow dressing for a mere restructuring of the internal bureaucracy of the Judiciary?
I think this is a fair question given that it took seven years from our meeting and over eight and a half years since the ABA’s awarding of the grant to form an ATJ Commission to come up with this Access To Justice Office.
In the closing of the Judiciary‘s News Advisory, the Chief is said to have embraced a quote from Justice Lewis Powell: “Equal Justice under Law is not merely a caption on the façade of the Supreme Court building. It is perhaps the most inspiring ideal of our society... it is fundamental that justice should be the same, in substance and availability, without regard to economic status.”
This quote might have had more import had it not come from a Justice who joined the majority opinion denying the right to counsel in Lassiter v. Department of Social Svs., 452 U.S. 18 (1981).
I hope this clarifies the ATJ situation in Rhode Island. Why this situation continues to exist will be the topic of Let Me Clarify - Part II.
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