(NO) ACCESS TO JUSTICE IN RHODE ISLAND

 Readers of this blog know that one of my intense desires is to see the establishment of an Access To Justice Commission in Rhode Island. Why? Because of two reasons: first, I live in Rhode Island; and second, Rhode Island is one of only a few states that hasn’t formed such a Commission.

To put it more plainly, forty jurisdictions have Access To Justice Commissions (ATJC) and three other jurisdictions have formed Access To Justice Entities (ATJE). By my count, ten jurisdictions have none. Rhode Island is one of these ten.

For further clarity, the forty-three jurisdictions with some iteration of ATJCs include the District of Columbia, Puerto Rico, and the Virgin Islands.

Let me give a brief history to better understand how absurd it is that Rhode Island has no ATJC.

In the mid to late 2000s, the American Bar Association received money from two sources, the Public Welfare Foundation and the Kresge Foundation, to be used to explore the establishment of ATJCs in the various states.

States would apply to the ABA for funds to be used to develop plans to establish these Commissions. The March 21, 2013, edition of The Providence Journal, byline attributed to reporter Kate Mulvaney, reported that the Rhode Island Judiciary received $18,000 to be used toward “toward creating a commission to improve legal access for the poor and disadvantaged.”

Evidently Rhode Island was one of five states to have received funds through at least first Quarter 2013. And according to the Journal, twenty-seven states and the District of Columbia already had Commissions.

Here we are eleven years later and still no ATJC in Rhode Island. So, what happened? Now we’re asking good questions. These are questions I’ve been asking for the past seven years. I have raised this issue initially in two Guest Mindsetter columns published by the online news outlet GoLocalProv in 2017.

I have periodically raised this question on various blog posts.

I wrote a book – two volumes – entitled Access to Justice on The Outskirts of Hope in 2020 and available from Amazon via the links on the homepage of this blog. But if you’re here you probably know that.

In Volume I of my book, I recount in detail a lunch meeting I had with Chief Justice of the Rhode Island Supreme Court Paul Suttell (the “Chief”). Don’t get me wrong, I don’t regularly have lunch with the Chief. The full recounting of this November 2014 lunch and its purpose is recounted in detail in my book.

For those unaware, I formed and operated a non-profit legal services corporation (LSO) in 2009. In order to stabilize the funding of my LSO, our Board Chair and I sought the Chief’s support for legislation that would create a modest financial stream in support of the LSO. My Chair set up the lunch (he knows the Chief) at the University Club, a toney venue for a discussion about providing legal services to poor people.

As I note in my book, the model proposed in our legislation was already extant in support of a sister LSO. All we sought was a similar similar funding vehicle. And I think it’s important to point out that the model we proposed was revenue neutral with no impact on any other program and would not impose any burden on Rhode Island’s taxpayers.

The three of us, plus a fourth person who I continue to choose not to identify (see the explanation in book), sat down for lunch. After I made our appeal for our legislation, the Chief said he would not only not support it, he’d actually oppose it.

It’s in the book if you want the full story and analysis. What’s important here is what the Chief said to our unnamed lunch companion: “now that the election’s over, maybe it’s time to get that Access To Justice Commission started.”

This was approximately a year and a half after the seed money was awarded. He also wondered aloud what “Robert” (Barge of Rhode Island Legal Services Corp) would say?

There was little I could say. I only offered my assistance with any effort to create the Commission. As of this writing, nine and a half years and counting, I’m still waiting for the call.

It’s been 11+ years since since the ABA awarded the grant to form the Rhode Island ATJC. It’s been about 9 ½ years since our lunch with the Chief. Over that time, nothing. We don’t know who was tasked to study the formation of an ATJC. We don’t know who who received the $18,000. We haven’t seen any work product resulting from studying the establishment of an ATJC.

So, here’s Question 1 in multiple parts: who got the $18,000; and where is the work product; and if no work product, then why not?

To be fair, in November 2021, the Judiciary established an Access to Justice Office. The Court stated that the Office’s purpose is to ensure compliance with the Americans With Disabilities Act (ADA). This is clearly an important purpose and vital to a large swath of people in need of assistance. Also, there was this from the announcement:

“Defendants who cannot afford a lawyer in criminal cases are entitled to representation by a public defender or a court-appointed attorney, but no such entitlement exists in civil cases. 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.

With the new office, Chief Justice Suttell hopes to develop strategies to increase public awareness to access to justice issues, including pro bono and other legal aid to self-represented litigants, and increase collaboration among legal aid providers.” [Italics mine]

There’s lots to unpack in this non-statement statement. First, I think that there’s a marked difference between “self-represented” and pro se litigants. In my mind, pro se litigants are those who, due too much hubris or are too miserly, decide not to retain an attorney. “Self-represented” are those who haven’t the financial resources to retain counsel. These words are often used interchangeably. It isn’t mere semantics to discern the differences between these terms. One represents a choice no matter how ill advised, the other allows for no choice at all. I focus on those litigants who are “self-represented.”

Second, it took eight years, from the ABA’s awarding of the grant in 2013 to putting lipstick on the non-progress pig in November 2021. And since 2021…*crickets* Glaciers moved faster than this.

Third, it’s absolutely true(ish) that there is no entitlement (some might say “right”) to representation in civil matters. When the state’s highest court makes this observation, my reaction is to ask, “why not?”  Clearly there are ample arguments under the state constitution’s due process and equal protection provisions to establish that “entitlement” to representation exists in civil matters. All it takes is an appropriate case brought by a self-represented in forma pauperis litigant in any of the nearly 37,000 cases cited in the Court’s announcement.

The “ish” is 11 Hen 7, c.12 from England in 1495. Under this olde English statute, a plaintiff deemed to be in forma pauperis could receive pro bono legal assistance with the the preparation of pleadings and if necessary legal representation. What has this got to do with Rhode Island? This statute was incorporated into the Rhode Island General Laws, see R.I. Gen. Laws § 43-3-1, which reads:

“In all cases in which provision is not made herein, the English statutes, introduced before the Declaration of Independence, which have continued to be practiced under as in force in this state, shall be deemed and taken as a part of the common law of this state and remain in force until otherwise specially provided.”

As an aside, I’ve counted three times that this English statute has been cited and employed in the waiver of court fees and costs for self-represented litigants found to be in forma pauperis.

Question II: doesn’t the application of the above incorporated English statute present equal protection issues? Are we living in a time where in forma pauperis plaintiffs are treated differently than in forma pauperis defendants? My question in not mere food for thought.

Fourth, while we’re at it, I find the use of the word “entitlement” to be tepid. Entitlement connotes something extrinsically bestowed. Thus, if the Court says someone is entitled to an attorney, it is bestowing that entitlement on to the individual.

However, the word “right” connotes something intrinsic to the individual. If that’s the case, then government through legislation or court decisions cannot bestow an entitlement on to an individual. All government can do is acknowledge a preexisting intrinsic right.

By way of example, in the 1973 decision Roe v. Wade, the SCOTUS acknowledged a preexisting privacy right regarding reproductive health. The Court did not grant an entitlement enabling women to make health care decisions, it acknowledged a preexisting right as articulated in Griswold v. Connecticut a few years earlier an applied it to women’s reproductive health care. Forty-nine years later, in Dobbs v. Jackson, the Court ignored precedent, which then enabled it to view reproductive health as an entitlement, therefore enabling it to withdraw the entitlement.

How’s that working out?

Words and their application matter. The use of a word reveals the intent of the user, conveying more than just a dictionary definition. Imagine if Thomas Paine entitled his book Entitlements of Man instead of Rights of Man, would anyone plausibly argue that they’re the same thing? Would anyone argue that both words convey the deep meaning of Paine’s intent?

This leads me to the conclusion that “entitle” is pretty weak sauce, a word that conveys the Rhode Island Judiciary’s underlying intent.

Fifth, I emphasized the portion regarding the Chief’s “hopes.” Hopes? The Chief Justice is not only the paramount jurist in the state; he’s also the administrator of the court system. He doesn’t have to hope, he can act. Eight years after the ABA award, seven years (almost to the day) since our luncheon, in 2021 he’s at the point where he hopes to develop strategies to address the issues surrounding access to justice?

Let’s crunch a couple of numbers. According to the Court, there were 36,885 cases in 2019 where at least one litigant was not represented by counsel. This seems consistent with other numbers I’ve seen over the years. Assuming that this total is pretty much an annual average, then in the two years between the 2019 number the 2021 announcement that number increased to 73,770. Over five years, the total number could be expected to rise to 184,425 cases.

This five-year number shouldn’t be surprising. According to the 2023 Census Bureau’s Quick Facts, Rhode Island’s total population was 1,095,962. The poverty level in Rhode Island was 10.8 percent.

For example, the federal poverty level (FPL) as computed by the federal government for 2024 is $25,820 for a family of three. Or if you’d rather, a family of four meets 100% FPL with an annual income of $36,580. If the family’s cash income is 50% of these numbers, they are said to live “extreme” poverty. If the family’s income is incrementally higher than the poverty threshold (e.g., 133%, 138%, 150%) then that family is considered “near” poor.

Let me be clear, whether a family of one or a family of eight, anyone living at “100% FPL” is living in extreme poverty.  

Let’s get past the absolute absurdity of the FPL. The FPL is an abstract political measure based on a decades’ old formula. Any relationship between that measure and reality is purely accidental. However, because policy decisions regarding qualifying for services and programs are based on these formulations, were stuck with it.

Continuing with this number crunch, based on the numbers provided by the Census Bureau, there are 118,364 Rhode Islanders living in poverty with incomes at 100% FPL. Moreover, applying the average of 2.43 persons per Rhode Island household, this amounts to approximately 48,709 low-income households in Rhode Island.

According to data provided by the Legal Services Corporation (LSC), 74% of low-income households experience at least one legal issue each year.  Applying this 74% to the number of low-income Rhode Island households we get 36,045 households confronting at least one legal issue each year.

Quick Note: the LSC minimum of one legal issue per low-income household number is the lowest I’ve seen. Not long ago, Massachusetts reported approximately 2.6 civil legal issues per low-income household, Connecticut 2.4 issues per low-income household. I know from operating my LSO that many clients presented with two or more issues.

The intersection of poverty and the law could not be more obvious. Let’s look again at the Judiciary’s Access To Justice Office announcement: “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.”

If I had to guess, an overwhelming number of cases were either eviction or debt collection cases. In the vast preponderance of these types of cases, the defendant has no legal counsel. Landlords and debt collectors almost always have lawyers. Imagine a novice checker player playing chess against a grand master. The imbalance obvious in that chess game is exponentially better than a self-represented client in an eviction hearing.

Clearly there is access to justice in that anyone can walk through the courthouse doors. But without counsel to advise, guide, and represent the low-income litigant, is it meaningful access? The answer is an unequivocal no.

A primary function of courts is to provide a peaceful forum for the resolution of disputes. We pride ourselves with ensuring fair treatment of all litigants to arrive at what we hope is “equal justice under law.” But ignored are the court rules and procedures that govern the legal forensic battle, the outcome of which ensures that we can be confident is the “truth” of the case.

This assumes a level playing field where too often no such field exists.

Trust in a court’s outcome, whether it’s from our state district courts or the United States Supreme Court, is foundational to the maintenance of our democracy. But when one party is so disadvantaged for the sole reason that they cannot afford an attorney or hasn’t access to knowledgeable legal advice, then “equal justice” becomes more aspirational than real.

I find it interesting that at the conclusion of the 2021 Access To Justice Office, Chief Justice Suttell quotes then former Associate Justice of the United States Supreme Court Louis Powell, who in remarks delivered in 2016 to an Annual Meeting of the ABA said:

“Equal justice under law is not merely a caption on the facade of the Supreme Court.  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.”

Thus, my last question is: Mr. Chief Justice, where is the Access to Justice Commission for which the Judiciary received seed money in 2013 for use in establishing an ATJC, and about which you spoke in 2014? And as Adlai Stevenson memorably said, “I’m prepared to wait until hell freezes over for the answer to my question.” Unfortunately, tens of thousands if not hundreds of thousands of Rhode Islanders do not have that luxury.