Access To Justice (And Dignity)

By Tom Nelson

It turns out that Minnesota has a special connection to the promise: “Equal Justice Under Law.” So, quickly now: where does that phrase come from? It’s on the front of the United States Supreme Court building, and in the lobby of our Minneapolis federal courthouse, and it’s lurking in our Pledge of Allegiance. But it’s not in the Constitution or any of our founding documents. Instead, it came from the Supreme Court’s architects—headed by Cass Gilbert, the architect for our state Capitol building. Put simply, it had just the right number of letters for the otherwise-blank space above the court’s front door. The phrase “fits” in more ways than one; it is apt, inspiring, and meant to be relied upon. That’s no doubt why the Supreme Court adopted it. It is at the very core of our commitment to the rule of law, equal protection, due process, and access to justice.

Unfortunately, access to justice is an especially timely topic these days. It should be straightforward. Our legal system should be fair to those who need and enter into it, and that fairness shouldn’t depend upon whom you know or how much money you have. But our scales of justice are out of balance when it comes to the unmet civil legal needs of those amongst us of no, low, or modest means. The numbers aren’t working. We’re doing a lot, but it isn’t enough.

We have just under 300 state court trial judges; each year they handle roughly 1.5 million matters. Fully 500,000 of our fellow Minnesotans struggle to get by at or below 125% of the federal poverty level (just over $30,000 a year for a family of four), and an additional over 800,000 live at or below the 200% level. Their critical civil legal needs (shelter, safety, sustenance, and health care) are largely unmet. They may be “eligible” for civil legal aid, but 60% of the people who seek help and are eligible are turned away because of insufficient resources. We are fortunate to have around 260 dedicated civil legal aid lawyers, but their average salaries are lower than all other public service lawyers, and their salaries fall further behind each year. Recruiting and retention issues naturally abound. We’re in the midst of a cultural collision between two demanding realities: current court capacity, and the promise of equal access to justice. Public and private funding for civil legal aid is material, but insufficient.

Where can we get the necessary additional resources? Value can be either cash or innovative ideas and initiatives, so here are a few thoughts: 

• Minnesota was one of the very first states to establish a statewide website, 20 years ago, to help people navigate our legal system: LawHelpMN. It is a remarkable accomplishment by our civil legal aid community, recently enhanced with a “triage portal” to help those who need not only information but also representation. A virtual courthouse door. Great start. 
• The emerging “paraprofessional pilot” may be a modest one, but it is an important and promising court-ordered exploration. The Chief Justice has said that we can no longer “admire the problem” created by the tsunami of self-represented litigants. I agree. Maybe helping with evictions; maybe selected arenas of family law. Some legal advice and some court appearances, by qualified paraprofessionals, supervised by a licensed Minnesota attorney. Stay tuned.
• Minnesota’s legislators, 25 of whom are our lawyer colleagues, can surely help. This coming session is a non-budget year, but maybe this is a good time to set the stage for a robust budgetary discussion the next time around. More money? More judges? New kinds of judges? On the national legislative front, our MSBA and the ABA will be working again to strengthen civil legal aid funding. 
• “Civil Gideon” anyone? Technically, “the civil right to counsel.” Maybe the time has come. It’s literally knocking at our door, at least in the housing realm. Maybe it’s time to listen to the trumpet sounded in Gideon vs. Wainwright. 
• And yes, back to pro bono publico. You know the rule (i.e., 6.1). Basically 50 hours a year of legal services to people unable to pay—or, as an alternative, financial support to “organizations providing free legal services to persons of limited means,” in the amount that would be “reasonably equivalent to the value of the hours of service that would have been otherwise provided.” Time is money; but here, the absence of time might lead to the giving of money. Of course, if all 25,000 of our Minnesota attorneys called up to plan their 50 annual hours, it might be difficult to manage. But if those same lawyers called to ask about the payee for the check they’d like to write, that could be of enormous, even transformational, help. 

“Access to Justice” doesn’t mean that Minnesotans of modest means will or should win all of their cases. That’s not the point. But it does mean that they will be justly treated. Meaningful access to justice brings with it access to respect, and dignity. In that light, “Equal Justice Under Law,” whether chiseled in stone, or penciled on lined prison paper (as was Mr. Gideon’s petition), will strengthen faith in the rule of law as we all, but especially lawyers, strive to form “a more perfect union.”