Tuesday, May 1, 2007
About the Author
Jon D. Levy is an associate justice of the Maine Supreme Judicial Court and vice chair of the Maine Justice Action Group, which focuses on improving access to justice.
In 1957, the American Bar Association initiated the first Law Day to emphasize the contributions of the law and the legal process to the freedoms we enjoy as Americans.
Fifty years later, as we observe Law Day today, we rightfully celebrate what is the most advanced system of justice in the world. But we must also recognize that justice continues to elude many of Maine's low-income and vulnerable people.
In family law and protection-from-abuse cases in our district courts, one of the parties is not represented by an attorney in 46 percent of the cases, and both parties are unrepresented in 30 percent of the cases. ÝThis means that 76 percent of the cases proceed with at least one unrepresented party.
The challenge of representing oneself in any legal proceeding is daunting and stressful. Even the most prepared person will find it difficult to navigate a process steeped in constitutional theory, statutory law and rules of procedure and evidence.
The difficulty of the experience is magnified by the importance of the fundamental rights that are at stake in many cases.
The risk of injustice is greatly increased when a person fighting for basic human needs, such as custody of a child, protection from violence, or access to essential services such as housing or health care, must do so without the benefit of a lawyer.
We are fortunate to have several legal services organizations in Maine that provide outstanding services for those unable to afford an attorney.
However, the limited resources these organizations have to work with prevent them from being able to meet the demand that exists for their assistance.
One recent study established that fewer than one in six qualified low-income individuals who sought assistance from one legal services provider had their case accepted.
In addition, although Maine's private bar has received national recognition for providing reduced fee and pro bono representation for low-income persons, this effort is also not sufficient to meet the need.
Of course, Maine is not alone. Assuring meaningful access to justice is a national challenge. Recognizing this major unmet need in the civil justice system, last year the ABA House of Delegates unanimously passed the following resolution:
"The American Bar Association urges federal, state, and territorial governments to provide legal counsel as a matter of right at public expense to low income persons in those categories of adversarial proceedings where basic human needs are at stake, such as those involving shelter, sustenance, safety, health or child custody, as determined by each jurisdiction."
This resolution was the product of the ABA's Task Force on Access to Civil Justice that was chaired by Maine's own Howard H. Dana, Jr., who recently retired as a justice of the Maine Supreme Judicial Court.
Justice Dana's Task Force reported that, when litigants cannot effectively navigate the legal system, they are denied access to fair and impartial dispute resolution, the adversarial process itself breaks down and the courts cannot properly deliver a just result.
Absent a systemic response, access to the courts will continue to be denied to many solely because they are unable to afford counsel. Consideration of cost and convenience alone cannot justify a state's failure to provide individuals with a right to meaningful access to the courts.
On Law Day 2007, we must acknowledge that many of Maine's low-income and vulnerable citizens do not have equal access to justice. However, there is a burgeoning effort within Maine's legal community to assess how we can put the ABA's resolution into effect.
This is a difficult challenge, but one that underlies the sanctity of our civil justice system. It is surely worth pursuing.
Let us hope that when future generations look back on Law Day 2007 50 years hence, they will recognize that it was the turning point at which equal access to justice became a reality for all people of Maine.
- Special to the Press Herald
Reader comments
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The poor denied justice because they cannot afford counsel? Sounds an awful lot like being denied access to legal medical procedures because they cannot afford insurance, or out of pocket expenses. Or, difficulty with access to food or housing because of one's financial state, and having to rely on social services to provide for loved ones.
It is a systemic problem, not unlike other systemic problems, which tends to get looked at in isolation of the particular system. I would argue poverty in America is the dirty secret so intractable few really want to face it. Katrina's diaspora and what has become of those hundred's of thousands is evidence of that. So is the 76% of cases that go unrepresented for at least one of the parties mentioned above.
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As the Soviet army strutted across Red Square and the Soviet Union hauled out it's latest missles for the parade all under the smiling face of Nikita Kruschev and those that followed him, the US talked about a society under the rule of law, not tyranny.
It was a nice comparison, but one that faded over time as the Soviet Union collapsed and the ABA turned into a liberal think tank for lawyers.
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Fundamental rights should mean that everyone has that right. Whether or not you are in a court of law or the grocery store, you should be able to exercise your FUNDAMENTAL rights fundamentally. How can a RIGHT be at stake if it is a basic right that everyone has? I do not even believe a Maine Supreme Court Justice even said that in an article he wrote. Does he not see the irony in his statement?
The outstanding legal services organizations Levy refers to will only take a case that benefits the court or some other Maine Agency when won, not really the aggrieved party. A person fighting for “basic human needs” through a court system says it all here. That is, in America, if you do not have money to pay for the service, do not bother to try earning it by doing it yourself because the judge will allow council for the opposition to destroy you every time in the ‘fight.’ It has the “good-old-boys-club” name written all over it and no one is getting past ‘Go’ until they pay $200.00 an hour to the good-ole-boys. The way they’re going about it, it should take at least fifty more.
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