Alberta Darling had a lot on her plate in the late winter of 2011. As co-chairman of the Joint Finance Committee in the Wisconsin Legislature, the 66-year-old senator from River Hills, described on her website as having “a passion for protecting, educating, and improving the lives of children,” was one of the chief stewards of Governor Scott Walker’s Budget Repair Bill, the legislation that would spark one of the fiercest protests in the history of Wisconsin, and in fact, force Senator Darling to face a recall election.
But if threats of protests and recalls and the prospect of voter dissatisfaction would not cause her to veer off course, it was not surprising that the promise and presence of $2.6 million in civil legal aid — money designated to help poor people with legal problems — was no deterrent. That the funding did not come from tax revenue but instead from a court surcharge was meaningless. That Wisconsin had been the second last state in the country to fund civil legal aid was irrelevant. The money disappeared.
Well not quite disappeared. In a twist that still rankles those who worked so hard to get that money into the budget, Senator Darling’s committee did not cut the funding from the budget, it gave the money to district attorneys.
Lack of funding for representation of poor people with civil legal issues is an enormous problem that is getting worse. As the economy sputters, creating more legal problems for the poor, the people with control of the wallets decide that the life-changing issues faced by the poor are no different than the care and maintenance of a public park. Cutbacks are required. No apologies are given.
So Wisconsin’s Joint Finance Committee can undo civil legal aid without a hiccup. Congress can cut funding for the Legal Services Corporation, the agency that helps fund many of the legal service organizations, with ease. And our Wisconsin Supreme Court can refuse to endorse a system to appoint lawyers for poor people in civil cases, in part because it worries about what it would cost.
The result is that the organizations that are in existence to provide legal representation to the poor have to eliminate jobs and serve fewer people. Already the estimate is that 80% of the poor who need representation do not get it, and the number is growing. The court system slows to a crawl under the weight of unrepresented litigants.
Associates with Ivy League degrees in large law firms take days to write memoranda about issues that the unrepresented poor have to deal with alone, on the spot. The lawyers don’t own the problems; they get to turn off the lights and go home at night. The poor carry their problems wherever they go.
As Tom Cannon, the Executive Director of the Legal Aid Society, wrote in an opinion column in the Milwaukee Journal Sentinel in support of the so-called Civil Gideon petition:
If you are poor and face 10 days in jail for a bar fight, you are entitled to a free lawyer under state and federal law. If you are poor and face eviction, foreclosure, bankruptcy, domestic violence, repossession of the family car, garnishment of your wages, loss of child custody or denial of disability benefits to which you are entitled, you are on your own.
It is one of society’s embarrassments. Frustrating and disappointing, it is most of all impossible to comprehend the ease with which the plight of impoverished civil litigants is dismissed. It gets no media attention. The bar’s advocacy on the issue is often tepid.
And legislators, like Senator Darling, don’t care.
Thanks Mike. As always, you speak with conviction about a matter that goes to the heart of our profession and our national creed. Our law and justice system is meaningless unless those who need it most — those without the ability to protect their homes from foreclosure, protect their families and children from domestic violence, protect their access to the most basic necessities — can secure access to the system and realize justice. Ensuring both access and the ability to realize justice are core governmental functions. Those who cut legal aid funding are the same people who use the justice system without a second thought when they suffer from important legal problems — personal, family or business. The only difference is that they can afford it, and the poor cannot. If the civil justice system is to be the exclusive province of those who can pay, it should be funded accordingly — through steep filing and user fees. Then, maybe then, those with resources — and the businesses with which they are associated — will wake up and understand what it is like to not be able to afford access to secure justice.
Both Mike Gonring and Jim Bamberger make some thought-provoking comments. Why is this injustice allowed to occur? Not only do pro se litigants go to court at a great disadvantage, they clog up our court system and bring litigation for everyone to a crawl. Judges waste an inordinate amount of time leading pro se litigants through the litigation.
This problem is particularly acute in family court. Even someone who opposes public funding of private civil litigation must realize the current system causes great delays for everyone else. All are harmed by these delays. Providing lawyers for poor people speeds up the system for all.
I do, however, take issue with Mike Gonring’s claim the State Bar of Wisconsin has shown “tepid” support for the funding of legal services for the poor. To the contrary, the State Bar has been a leader in trying to reach a resolution to the problem. First, the bar conducted the exhaustive “Bridging the Gap” study, which provided the hard evidence Gov. Doyle used to provide $2 million/year in funding – for the first time in Wisconsin history. Second, the bar set aside $300,000 to fund the Access to Justice Commission created by the Wisconsin Supreme Court. No other legal association in this state has crafted such an exhaustive study or put such a large amount of money into a program to find a resolution to the problem. Perhaps the bar could do more, but it has a board of governors with divergent views on specific proposals.
This is a complex issue for which there are no easy solutions. Blogs like this are an important part of getting this discussion going.
Thank you for this excellent post. As the problem worsens, the poor and the vulnerable suffer the most. As members of the legal profession, we ignore this growing problem at our own peril. The justice system should not be a problem-solving forum only for those who can afford it. I agree that there are no easy solutions. My hope is that we keep trying and that as a profession and as a society, we commit to helping poor and vulnerable persons who need our help with serious civil legal problems.
We can dress up our ends with all of our noblest-sounding words. That doesn’t mean we can or should ignore the question of whether they justify the means. This kind of “whatever it takes” attitude is what has given us our bloated government in the first place.
The real question here is whether, given the problem that exists, we should use the power of government to take money unwillingly away from people who earned it and give it to people who didn’t. To my mind, government’s proper role here is to provide a forum for private litigants to resolve their private disputes – not to skew the results of those disputes by providing resources to one side it does not provide to the other.
I see the same problems you do. But to improve access, I prefer efforts to simplify the court system, create a market for less expensive representation, and encourage more voluntary charity, rather than simply creating another government entitlement.
Thanks for creating the space for this essential conversation. Many efforts are already underway to bring access to justice to the poorest among us. And there’s no doubt that more pro bono efforts from private bar attorneys would go far. Indeed, every single licensed attorney should accept at least one pro bono case per year. But it seems that public funding for civil legal matters is needed and will be spent from public coffers one way or another. Free civil legal services help parents secure child support orders, often for children receiving public assistance, thus reducing the burden of public assistance on taxpayers. Free civil legal services help citizens obtain federal disability benefits, thus reducing the burden on state and local government funds. Free civil legal services help prevent homelessness, saving astronomical costs to taxpayers in shelter costs. Free civil legal services help manage our overburdened courts. With attorneys, more cases are settled or screened out for lack of merit. Free civil legal services prevents domestic violence, saves lives, and prevents further physical injury (saving dollars in medical costs). If it seems expensive to fund civil legal services for the poor, it’s more expensive not to.