(NOTE: This is a continuation of Let Me Clarify - Part I. If you haven’t read Part I, to better understand what follows, please do so before reading this post.)
To recap Part I, Rhode Island is one of a handful of states without an Access To Justice Commission (ATJ). Even though in 2013 Rhode Island received a grant from the American Bar Association (ABA), Rhode Island in 2023 still hasn’t got an ATJ. Assuming that the grant dollars were spent examining the formation of an ATJ, there is no work product of that effort publicly available.
Added to that, recall that at our lunch in November 2014, the RI Supreme Court Chief Justice commented to a party at the lunch the they’d need to get started on the creation of the ATJ. As of today, we have only an Access To Justice Office, which, for reasons discussed in Part I, in no way can be confused with an ATJ.
Let me elaborate on the agenda for our previously discussed November 2014 lunch. This is thoroughly discussed in Access To Justice On The Outskirts Of Hope. Earlier that year, we unsuccessfully sought enactment of legislation raising court fees by $5 - $10, the increase to be directed to my legal services organization. This funding would have stabilized the finances of our non-profit. After our assessment of what we needed to succeed in the reintroducing the legislation in 2015, we thought having the support of the Chief Justice would be extremely helpful.
At our lunch, both my Board Chair and I delivered a thorough history of our agency, the number of vulnerable people who we served who otherwise would not have received legal services, and the benefits to the courts and the state that were derived from our efforts.
We then moved into our proposed legislative initiative in 2015, after which my Board Chair made the “ask”: Q would the Chief support us, A “no”; Q would the Chief remain neutral on this legislation, A “no”. Although I now thought I knew the answer to the next and many other questions I had, I allowed the Chief to deliver the coup de gras and asked: Q will you actively oppose this legislation and his answer came without hesitation, A “Yes”.
The Chief’s given reason for his opposition was concern that fees, already “too high”, were scheduled to increase by an additional $25 to offset the costs of the Judiciary’s new e-filing system. With that new fee scheduled to be implemented by early 2015, he didn’t want to risk the wrath of the private Bar by tacking on another five to ten bucks on the courts’ fees.
I thought this was a curious reason. Even with the fee increase related to the e-filing system, and including the amount we sought to have dedicated to us, Rhode Island’s court fees would still be the lowest in the region (see my book for further elaboration on this point).
So, if his given reason for opposing our legislation made little sense, and coupled with the evidently gratuitous comment about forming the ATJ, then what was his reason? By all accounts, we did good work providing legal services to vulnerable low-income people. We had a full time legal services office through the Rhode Island Medical Legal Partnership at a local hospital to mitigate social determinants adversely affecting health outcomes. These efforts were well received by our clients and the medical facility that cared for their health.
At that time, we were one of only two organizations in Rhode Island serving low-income parties. We had a decent relationship with the law school. We provided legal services on-site at ten senior and community centers throughout the state. We worked with state agencies and community organizations. That said, by any standard of measure there was a need far greater than any two legal services organizations could meet.
Even if this seemingly sounds self-serving and the Chief did have good reason to not support our bid for funding, that does not explain why there has been no serious action, if any action at all, regarding the formation of an ATJ.
So what was and is the problem? Why the resistance to changing the legal landscape?
In my view, at least part of the answer is organizational inertia. In this instance, as I discussed in my book, this inertia afflicted Institutional Law.
Every endeavor has its institutions, governed and guided by a cabal of elites who have outsized influence over the universe of their institution’s various endeavors. We see this in business, education, medicine, science and so on. Law is no different.
To be clear, I do not use the term “elites” in any pejorative sense. Rather, I use it in its political meaning. In short, I mean a small group of powerful people who hold a disproportionate amount of wealth, privilege, political power, or skill in a group.
Institutional Law includes the leadership of the Bar, Judiciary, law firms, law schools, and government offices. As the literature from Lasswell to Mills to Hart to Ely shows, these elites share common traits: all are highly educated, often having attended the same schools; have incomes significantly higher than the average; live in the same or similar neighborhoods/communities; belong to the same social organizations; possess a set of common social, economic and political values; and have little meaningful social interactions outside their narrow group.
And these elites hold and exercise significant political influence and power. In 2015, Law Professor Nicholas Stephanopoulos published a study entitled Political Powerlessness. The focus of the study was on the ability and likelihood that voters in specific income percentiles would see enactment of their policy preferences.
The research and analysis conducted by Stephanopoulos, building on studies previously conducted by others, showed that those in the 90th income percentile could expect to see most if not all of their policy preferences enacted; those in the 50th percentile could expect that some of their policy preferences would be enacted; and those at the 10th percentile would see few if any of their preferences enacted.
To put it more directly, those in the 10th income percentile are politically powerless to ensure enactment of policies vital to their interests and wellbeing, particularly as measured by the success of those in the 90th percentile - i. e., the elites - who are more than capable of protecting and advancing their interests.
Stephanopoulos even wondered if those living in poverty, and thus unable to assert and protect their interests through the political processes, should be included with those “discrete and insular minorities” as envisioned in Fn. 4 of Caroline Products, thus entitling them to greater Court scrutiny of statutes adversely impacting the lives of the poor. Unlike racial, religious, or alien groups to name a few, economic status is not currently considered a discreet and insular minority eligible for the Court’s heightened review of the adverse impact statutes have on the poor.
Nowhere in society is the impact of this system of elites more profound than in the intersection of the legislature, the judiciary, and law schools. As a general matter, this is not an unusual linkage, especially if the goal is to maintain the status quo and general social stability. In an egalitarian society where economic and social disparities are not acute, this may be desirable.
However, in a democracy where significant portions of society are politically, and thus by extension legally powerless to assert and defend their interests, this linkage can become corrosive. For example, in Rhode Island, three of the five Justices on the Rhode Island Supreme Court have held elected office, two of whom served in the legislature that ratified their appointments to the Court. The fourth is the spouse of a former state senator who is currently one of the major lobbyists in the state. The fifth is the only Justice without any extensive political history but who does have considerable experience providing legal services to the poor.
This intersection between the political and judicial branches is not one that cultivates a climate for change. And it doesn’t get any better when the state’s law school is included in this intersection. Viewing the school’s Board of Trustees, it becomes apparent that the Board will not function as a legal change agent. The chair of the Board is a sitting judge of the Federal District Court; the Rhode Island Supreme Court Chief Justice is a Board member; four more federal and state judges are members; other members come from big law firms or big business corporations. This composition doesn’t scream change agent.
The law, rooted in its historic antecedents, is inherently conservative. This provides society with predictability and stability. This predictability in the law’s application to contested matters allows for the broad acceptance of even adverse decisions. However, without changing the administration of law to accommodate the needs of diverse populations, the seeming neutral application of laws to disputes may often seem to these diverse populations as injustices, leading to an erosion of the respect for the law.
To be clear, there is nothing wrong with the above linkages. It’s just that this system rewards safe group think, which too often retards change. To think that independent organic change will arise from this system is like picking the weekly winning Power Ball number - it’s possible but not likely.
The vexing part of all this is that the Judiciary knows that there’s a problem. From the Judiciary’s 2017 Annual Report:
“In 2016, the latest year for which statistics were available, there were 8,203 cases
in which at least one litigant was self- represented, an increase of 13 percent from 2015 and a 54 percent increase from 2014. While allowed, the increased occurrences of self-represented litigants have a toll in terms of time and patience with litigants who may not be well-acquainted with court procedure. The Judiciary has tried to respond to the demand with a dedicated self-help section on its website to assist litigants in representing themselves.”
”While allowed…?” What’s the alternative to someone appearing pro se? I’m pretty sure that the Constitution permits self-representation, making the choice of words here a little insensitive if not mind boggling. But what’s obscured by this statistic is the proportion of those who appear pro se by choice and those who are forced to appear pro se by economic circumstance.
Reviewing the Judiciary’s Annual Reports through 2021, the only proactive(ish) action to address the the issue of self representation raised four years earlier was the creation of the Access To Justice Office. This office provides interpreters to parties who struggle speaking and understanding English, efforts to better comply with the Americans with Disabilities Act, and to “seek opportunities to improve collaboration efforts among diverse partners, including traditional groups (i.e. lawyers, bar associations, and law schools) and non-traditional groups. (i.e. community organizations) to eliminate access to justice barriers and to ensure that those who encounter legal issues have meaningful access to justice. In addition, the Access to Justice Office will work with various courts in the unified state court system to identify specific needs and expand resources for self-represented litigants.”
Let me say once more: These. Are. All. Good. Things! No one could reasonably assert otherwise. But that said, it is painfully clear that the Judiciary is contorting itself to avoid creating an Access To Justice Commission. The question remains, “why?” The above is my answer to that question.
In March of 2023, ten years will have passed since the $18,000 awarded by the American Bar Association to form an ATJ. It is reasonable to ask when will the ATJ be formed?
My hope is that in March 2033 we will not be asking the same question.
There will be a Part III highlighting efforts to aggressively serve low income parties in one discreet area of law - evictions. There’s lots going on, not in Rhode Island but elsewhere.
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