Who Will Lead the Fight for Access to Justice?

Jess Dickinson was on a roll, his Southern delivery infused with force and emotion. The Constitution is meaningless unless it is effective, said the presiding justice of the Mississippi Supreme Court. It is time, he said with rising voice, for judges to “stand up” and help insure that poor people have equal access to the courts.

The audience noted its approval with a standing ovation, but that result was never in doubt. After all, the occasion was the Annual Meeting of State Access to Justice Chairs last Saturday in Jacksonville, a gathering of 168 lawyers, judges and state supreme court justices from over 40 states, Puerto Rico and the District of Columbia, all of whom have signed on to the cause of equal access. There was an understandable enthusiasm for the justice’s remarks.

And the audience included the Honorable Shirley Abrahamson, Chief Justice of the Wisconsin Supreme Court, making a rare but significant appearance at the meeting; significant because in Wisconsin, access to justice has not enjoyed the out-front leadership of the highest court as it has in many other states, including Justice Dickinson’s Mississippi.

The Wisconsin court, principally the Chief Justice, has been active in the cause of self-representation, striving to make the courts more user friendly to those who cannot afford a lawyer. The Court also approved changes to the rules of professional responsibility that paved the way for the expansion of brief advice clinics, and adopted a State Bar petition to create an Access to Justice Commission. The Chief Justice has led the way in promoting the study of limited representation, considered an essential step in addressing the problem of access to the courts.

Most significantly, the court approved the $50 annual assessment that goes to the Wisconsin Trust Account Foundation’s Public Interest Legal Services Fund, providing much needed funds as IOLTA income fell. (One of the more bizarre events I’ve ever witnessed is the State Bar Board of Governors actually debating a proposal to sue the Court because of the assessment.)

But it would be a stretch to say that our Court has been out in front, leading the way on access to justice issues in Wisconsin.

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Victim/Offender Mediation in Turkey

After a delegation of members of the Turkish Parliament visited Marquette Law School last month, I had the privilege of traveling to Istanbul to moderate a victim/offender mediation conference for two hundred fifty Turkish prosecutors and judges. There were fourteen of us restorative justice “experts” from ten different countries who were there for three days to talk to the ballroom full of lawyers, who wanted to learn how to best implement Turkey’s already enacted victim/offender mediation process during criminal prosecutions.  It was a fabulous experience.

The United Nations’ Development Programs for Judicial Reform organized and oversaw the planning of the conference. Because the panel members came from many countries (Albania, Austria, Belgium, Brazil, Canada, Italy, Scotland, Spain, Turkey, and the United States), we had simultaneous translations of the conference into several languages. The Turkish audience was lively and eager to participate in the dialogue. Over the first two days we spent much of our time taking questions from the floor and answering them from the perspectives of different cultures, judicial systems and philosophies. The Turkish prosecutors and judges, like prosecutors and judges around the world, are working to improve the delivery of justice despite their significant caseloads. They hope that by using restorative processes that they can provide a more just system while reducing the number of cases that must go to trial.

I have a number of observations about the conference.

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Signing a Recall Petition Does Not Require Judicial Recusal

We live in interesting times.  A segment of the general public is quick to forgive the killing of two young men in Slinger, Wisconsin and Sanford, Florida as the unavoidable consequence of the exercise of a constitutional right.  Yet at the same time, state court judges who have exercised their constitutional right of self-governance by signing a recall petition are being publicly called out by both special interest groups and the media, as if by signing the petition they have transgressed some moral boundary.  These are interesting times, indeed.

The signing of a recall petition is a right guaranteed by Article XIII of the Wisconsin Constitution.  It is a procedure whereby any voter can request that the continuation in office of an elected official in the State of Wisconsin should be put to the vote of the full electorate.  If a sufficient number of voters sign the petition, a recall election is held.  A recall can only succeed in removing the officeholder if both a sufficient number of recall signatures are filed and a majority of the electorate votes in favor of removal.  The Recall is democratic self-governance in its purest form, and along with the Initiative and the Referendum it is one of the three structural vehicles by which Progressive Era voters sought to bypass the influence that special interests hold on elected bodies.

The Wisconsin GOP has filed an official complaint against Dane County Circuit Court Judge David Flanagan with the Judicial Commission on the grounds that the judge should have recused himself in a case challenging the constitutionality of the Wisconsin Voter ID law.  Must judges who have signed a recall petition subsequently recuse themselves from sitting on any case in which the Governor, or Republican legislators, or the Republican Party of Wisconsin asserts that the signing of the petition evidences a bias against them?  The answer is “no.”  There is no explicit provision that prohibits judges from signing a recall petition or that mandates that they recuse themselves from any politically charged case if they have done so.

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