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Just why should we care about legal services for the poor?

Access to justice means the difference between keeping or losing custody of a child — and for some innocent people, the difference between freedom and prison.

Judge Kevin S. Burke
Judge Kevin S. Burke

As part of its budget cutting, the Arizona Legislature eliminated heart transplants for the poor. Predictably, people died. In Minnesota the more modest proposal is to stop providing prosthetics for the poor who have lost limbs. If states across the country are whacking significant health-care options for the poor, why should we continue to care about funding their civil and criminal legal services? The answer: For many people a good lawyer can mean the difference between sickness or health, oppression or liberty, fear or peace of mind.
Civil legal services have a tortured political history. There are myths about the origins of the Legal Services Corporation (LSC), the federal agency for civil legal services. In February, U.S. Rep. Jeff Duncan, R-S.C., proposed zeroing-out the legal-services budget. Duncan called the agency a “relic from the Great Society.” He said, “We cannot afford to keep paying for liberal trial lawyer bailouts like the LSC.” But the LSC was created under President Richard Nixon, who endorsed the idea and in 1974 signed the Legal Services Corporation Act.

Until 1980, LSC enjoyed political and financial support. During that span, the LSC funded 1,450 local offices staffed by roughly 6,000 lawyers. But President Ronald Reagan wasn’t a fan. In 1981, he pushed to disband the LSC and, when that failed, his administration strenuously lobbied against further funding. By the mid-1990s House Speaker Newt Gingrich, R-Ga., championed another elimination effort, which the Christian Coalition supported. The attempts failed, as did Rep. Duncan’s proposal. No Democrat voted for Duncan’s amendment and 68 Republicans voted against it. (Although none of the Republicans voting “no” was from Minnesota.) Instead, the House adopted an 18 percent, $70 million, cut to LSC’s budget.

Although the Continuing Resolution agreed to by the president and House and Senate leadership provided for a reduction of slightly more than $15 million, the budget fight for next year’s appropriation for legal services will continue this summer.

The Legal SC does have supporters in high places. The Conference of Chief Justices has called for increased funding. State and national law associations also voice concern. In March 2010, the U.S. Department of Justice launched the Access to Justice Initiative and recruited Harvard professor Laurence Tribe to head that effort. The agenda of the initiative is to improve the availability and quality of indigent defense and to enhance civil representation for those without wealth, including the middle class. The focus of the initiative is to give special care to the legal needs of the most vulnerable, including immigrants, juveniles, the homeless, disabled veterans and victims of domestic and sexual violence.

Primarily a state issue
What happens in Washington is important, but funding of lawyers for the poor is primarily a state issue. Antipathy toward indigent legal services isn’t confined to the Beltway. In Wisconsin and Minnesota, budget-balancing proposals call for shifting legal-aid funding to public defenders. The argument is that the right to counsel in criminal cases is in the Constitution and civil legal services are not. Put another way: We propose to take away the lawyer for the battered wife and give the lawyer to the battering husband.

Minnesota has a unique history with respect to the right to counsel for poor defendants. In Gideon v. Wainwright, the U.S. Supreme Court held in 1963 that a poor person in a criminal case had the right to a lawyer. Until that ruling, the decision had been left up to the states to decide whether an indigent defendant would get a lawyer.

Minnesota Attorney General Walter Mondale declined to join other attorneys general in filing an amicus brief supporting Florida in its fight to deny Gideon an attorney. Instead, he filed a brief in support of Gideon and wrote to the Florida attorney general, “I believe in federalism and states’ rights too, but I also believe in the Bill of Rights. … Nobody knows better than an attorney general or prosecuting attorney that in this day and age furnishing an attorney to those felony defendants who can’t afford to hire one is fair and feasible. Nobody knows better than we do the rules of criminal law and procedure which baffled trained professionals can only overwhelm the uninitiated. Since I firmly believe that a person charged with a felony should be accorded the right to be represented by counsel, regardless of his financial condition, I would welcome the court’s imposition of a requirement of appointed counsel in all state felony prosecutions.”

The promise of Gideon, however, faces its own challenges. During Gov. Al Quie’s term, the state created the State Board of Public Defense to “manage” the state public defense system. Before the creation of the board, there were places where the prosecutor and the clerk of court would choose the defendant’s lawyer. Perhaps even the Minnesota Timberwolves could be successful if their coach could pick the starting lineup for the opposing team. Before the state board came to exist, public defender services were funded by property taxes. That meant that poor counties had the least ability to fund defense lawyers. Small counties always had the risk that some horrific crime might occur and the defense costs would close the libraries or cancel the snow plowing.

Public defenders underfunded for a decade
For the past decade, funding for the entire public defender system has been lacking. In 2001, 70 percent of the judges in the state thought the system was underfunded. The funding isn’t improving. Since 2008, 15 percent of the public defenders have been eliminated. Nothing better illustrates the underfunding of the public defender system than the Sixth Judicial District in northeastern Minnesota. In 2008, the district had 36 lawyers. Now there are 26. In July 2010, four inmates from the Moose Lake Security Hospital (the hospital for sexually dangerous persons) escaped. Once the inmates were caught and charged with escape, Fred Friedman, the chief public defender for the district, said he had no lawyers to represent them. The money for their defense was eventually found, but last month 17 inmates in Moose Lake’s hospital were charged with felonies. No one was killed, but now 17 inmates with nothing to lose want their day in court.

Lawyers have tried to help. In November 2009, the state Supreme Court placed a “temporary” surcharge of $75 on lawyer license fees to help the public defender system and $25 to help legal aid. In March, the court extended the temporary fees with an order that said, “we will not continue, beyond this second temporary fee increase, to rely on lawyer registration fees to fund the constitutional obligation of the State to provide defense counsel for indigent criminal defendants.” Lawyers in Minnesota volunteer to represent the poor. But make no mistake; over-relying on volunteers is no permanent solution to the problem of access to justice.

Robert Kennedy said nearly a half a century ago, “justice, dignity and equality. These are words which are often used loosely with little appreciation of their meaning. But I think that their meaning can be distilled into one goal: that every child in this country lives as we would want our own children to live.” Access to justice means the difference between keeping or losing custody of a child, between living in a safe and secure home and living on the streets, or in constant fear of violence. Access to justice is the difference of freedom and prison for some number of innocent people.

The issue needs vocal champions
There is no simple solution for this problem, but progress can be made. First, the judiciary needs to be even more vocal. A judge may have little political clout, but the position comes with a bully pulpit. If Nixon, Mondale and Quie found ways to champion legal services for the poor, then surely some current politicians of disparate leanings can lead on the issue. Third, the relationship between the public defender and civil legal services systems needs to become an unbreakable bond. The suggestion that we cannot afford both is no more logical than cutting the fire department to fund the police.

States too often fund these programs with unrelated surcharges. Wisconsin used a utility bill surcharge. Minnesota used money from real-estate filing fees. Lots of states place a surcharge on lawyers. License fees can play their part, but there are limits to this idea. We do not, for example, require police officers to pay a surcharge on their licenses to fund jails to put the people they arrest somewhere.

Minnesota needs a clear, stable funding strategy to provide lawyers for the truly poor and neediest. Perhaps it is a “sin” tax. When Minnesota funded medical care for the poor, the state placed a “sales tax” on medical services. Doctors did not like the idea. A small sales tax on legal services may not be popular among lawyers, but for the critics of the legal profession perhaps this is the time to test the hypothesis that if you place a tax on legal services, all the lawyers will move to Wisconsin and Iowa.

What is fundamentally required is an acknowledgment of the principle that Robert Kennedy spoke of. We need to ensure that the poor of this country have the kind of access to justice we would want for our children, our mothers and our fathers.

Judge Kevin S. Burke has served on the District Court for 27 years. In the past he has served as the Chief Judge for four terms. He is currently president elect of the American Judges Association.