“Men are born and remain free and equal in rights” (Article One of the French Declaration of the Rights of man and citizen (1789)
Virtually nothing in American law school training appears to focus on access to justice as a fundamental right. The United States Supreme Court's jurisprudence focuses on Bill of Rights phrases, in their interpretations of "due process," "liberty" and "equal protection," which are all derivative from, or secondary to, the most fundamental right: meaningful access to justice itself. One cannot reach the others if this primary requirement of the rule of law cannot be met. Yet, differently from most other advanced democracies, the American legal system excludes no-low-middle income groups from access to tort civil justice, reserving it to the well to do class. This situation remains unconstitutional.
This assessment is based on the following constitutional principles.
1. There can be no democracy, let alone social justice when the Courts are reserved for those well to do groups who can afford them, while the other social groups can not. Civil justice is erga omnes, “for all” as is operative the principle of the “equal justice of the laws”. This principle is written on the temple walls of all American Court houses, in included in the National Hymn and in many federal and State cases.
2. No cast or privileged group can run this country and make self serving rules. Let alone continue to ruin its social fabric, public health, international cooperation and the environment. The government is elected by the governed and FOR the People and the general interests. Not for the greedy, big business and the tyrannical elements of Society. Yet, three fourth of all of the laws of this country are “enacted” by regulatory agencies and other instutions which are organically connected to the Executive power.
3.There is no substantive or procedural due process without meaningful and efficient and cost-friendly access to the Courts. In this aforementioned light, hereinafter the candidate’s ratio decidendi in the form of the traditiona legal syllogism:
1. FIRST PREMISE : All laws that benefit one class or social group must benefit all others as well.
2. SECOND PREMISE: No person shall be deprived of life, liberty, or property, without due process of law.
3. CONCLUSION: THEREFORE, The unequal application and protection of the laws in terms of fundamental rights between parties and social groups is all the more unconstitutional that this discrimination affects life, liberty or property.
“Men are born and remain free and equal in rights” (Article One of the French Declaration of the Rights of man and citizen (1789), the one the 1793 US Constitution was enlightened by). But liberty is not the ONLY fundamental right. “The aim of every political association is the preservation of the natural and inalienable rights of man; these rights are liberty, property, security and resistance to oppression”. (ibid.). These French and universal principles have been incorporated within the American polity and its constitutional law structure, from as early as 1776.
“…all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty and the pursuit of happiness. That, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it and to institute a new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness” (The United States Declaration of Independence (1776)).
There is no legitimate reason why only criminal indigents ought to be “rewarded” with public legal assistance and civil indigents who do not disobey the law “punished”, even the Federal Supreme Court has acquiesed to this principle many decades ago.
“…We have recognized that the promise of equal justice for all would be an empty phrase for the poor, if the ability to obtain judicial relief were made to turn on the length of a person's purse. It is true that these cases have dealt with criminal proceedings. But the Equal Protection Clause of the Fourteenth Amendment is not limited to criminal prosecutions. Its protections extend as well to civil matters.
States may NOT treat similarly situated people differently if there is no reasonable basis for this, as in this case. State v. Herrera, 1999 UT 64, ¶ 25, 993 P.2d 854. The Equal protection clause requires that persons similarly situated with respect of the legitimate purposes of the law receive like treatment . USCA Const. Amend 14 West RCWA Const. Art. 1 para 12. There is no justification in discriminating between those who are deprived of liberty (prison) from those who are deprived of life or property. All deserve financial access to genuine Justice and to the Courts. And the right to due financial assets and property is a fundamental right of man. In Martinez v. California. 444 U.S. 277. 281- 282. 100 S.Ct. 553. 556-557. 62 L.Ed.2d 481 (1980), the Court noted that a " …tort claim is a "species of 'property' protected by the Due Process Clause."
"No person shall he...deprived of life, Iiberty, or property without due process of law... " (Fifth amendment) "No State shall.. deprive any person of life, liberty, or property, without due process of law... (Fourteenth Amendment)
Moreover, in United States v. Kras. 409 U.S. 434. 93 S.Ct. 631. 34 L.Ed.2d 626 (1973), the Court agreed that a due process right of access to the courts exists when fundamental interests are present and the State has some control over the adjustment of the legal relationships involved. Id.. at 445. 93 S.Ct., at 637. The relationship between these opinions and the right to procedural due process at issue in the instant case is made clear in Boddie and recognized by Wa case law. In Bodie, the marriage legal relationship demonstrated a State nexus. In Joubert, the wrongful death cause of action is demonstrated to be structurally the result of a general recklessness of the American government in willingly abdicating their responsibility regarding preventive medicine, public health and efficient medicine, because of which the State sponsored allopathic (mainstream = corporate drugs) medicine destroys hundreds of thousands of innocent patients each year.
Moreover, the elements of customary law, both nationally and internationally dictate that the present case law and statutes that financially discriminate upon no and low income parties are if not clearly unconstitutional, at least shockingly “irregular”. In this perspective, the Washington State Bar Association (WSBA) for example has a long-standing concern with access to justice issues, in particular the unmet legal needs of persons with limited or moderate income. The following is a statement from WSBA President Stanley A. Bastian regarding the recent Washington State Supreme Court ruling in In re: King, the one used in the Joubert January 22, 2008 decision:
"This case highlights the need to greatly expand access to civil legal services in Washington, particularly when basic human needs are at stake such as in child custody disputes. Every day, people around the state appear in court without legal representation. And they often do so by necessity, rather than choice. Those individuals are also often unable to effectively present their cases in a court. Access to the justice system is a fundamental right, and no person should be denied access simply because they are poor. The WSBA will continue to work with the Legislature to expand access to our court system in Washington."
The King case involved a child custody dispute between a divorced couple. The father was represented by counsel. The mother had a ninth-grade education and limited income. She could not afford an attorney, and did not have one at trial. The court eventually awarded primary care and decision-making authority for the divorced couple’s three children to the father. The case addressed the issue of whether individuals are entitled to attorneys at public expense in limited circumstances. Depriving a mother from financial assistance regarding her children is a “liberty” issue recognized in Amendment 14 as is depriving Joubert of financial assistance regarding his father’s wrongful death, which is both a “property” and a “life” issues also grounded in Amendment 14 of the Federal Constitution and articles 1.3 and 1.12 of the State Constitution.
It is the sacred duty of the Courts to remain “separate” and serve both the Spirit and the Laws of the Constitutions. If only to be coherent with French political philosopher’s Baron de Montesquieu’s separation of powers doctrine, the foundation of which is responsible for the legality of the United States. In many other advanced democracies, this civil versus criminal legal aid discrimination is not tolerated. The European Human rights Court has consecrated this fundamental right enshrined in Europe’s Constitutional bedrock erga omnes (for all) (See quote above). Incorporated within the fundamental rights Charter of the European Union, article 47 provides in pertinent part:
«Legal aid is accorded to all who do not dispose of sufficient resources, if this aid is necessary to guarantee an effective access to justice».
Hereinafter two pieces of case law that applies this European constitutional principle.
“ In conclusion, the denial of legal aid to the applicants had deprived them of the opportunity to present their case effectively before the court and contributed to an unacceptable inequality of arms with McDonald’s. There had, therefore, been a violation of Article 6 § 1. In view of its finding of a violation of Article 6 § 1 based on the lack of legal aid, the Court did not consider it necessary to examine separately additional complaints under that provision directed at a number of specific rulings made by the judges in the proceedings”. STEEL AND MORRIS v. THE UNITED KINGDOM, The European Court of Human Rights, (application no. 68416/01).
“One of the basic tenets of municipal and international justice is the concept of equality of arms, defined by the European Court of Human Rights as ‘a reasonable opportunity of presenting the case to the court under conditions which do not place him in substantial disadvantages vis-à-vis his opponent” (European Court of Human rights: Kaufman v. Belgium, 1986). The Court of Appeals commented in State v Ladenburg, 67 Wn. App. 749, 754-5 (Div II, 1992): “Under the appearance of fairness doctrine, a judicial proceeding is valid only if a reasonably prudent and disinterested observer would conclude that all parties obtained a fair, impartial and neutral hearing”.
Moreover, for genuine access to justice to prevail, the State also needs to better train judges, if only because of their Canonic duties to remain equitable. Likewise with pro se litigants (Click here for the details).
The reason for a decision: It is a legal phrase which refers to the legal, moral, political, and social principles used by a court to compose the rationale of a particular judgment. Unlike obiter dicta, the principles of judgment for ratio decidendi stand as potentially binding precedent, through the principle of stare decisis
This is the equal protection of the law clause of the 14 Amendment and the privileges and immunities clause of the Washington Constitution, which privides, in pertinent part: “No law shall be passed granting to any citizen, (or) class of citizens … privileges or immunities which upon the same terms shall not equally belong to all citizens…” (Washington Constitution, Article 1, § 12).
The Fourteenth amendment of the federal constitution and Washington State’s Constitution’s due process clause provide that: “No person shall be deprived of life, liberty, or property, without due process of law.” (Washington Constitution, Article 1, § 3).
U.S. Supreme Court WILLIAMS v. SHAFFER , 385 U.S. 1037 (1967) 385 U.S. 1037 Willie WILLIAMS et al., petitioners, v. Joseph N. SHAFFER. No. 824. Supreme Court of the United States January 23, 1967.351 US 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956).
Under this rational basis review, a classification cannot run afoul of the equal protection clause if there is a rational relationship between the disparity of the treatment and some legitimate governmental purpose. Under the same rational relationship test, the challenged classification will be upheld unless it rests of grounds wholly irrelevant to the achievement of legitimate state objectives. “…challenged classification must be purely arbitrary in order to overcome the strong presumption of constitutionality” ( 145 Wash.2d 275, 36 P.3d 1034).
The Supreme Court has ruled in Boddie v. Connecticut (1971) that poor people seeking to obtain a divorce may do so without paying a court filing fee, "given the basic position of the marriage relationship in this society's hierarchy of values and the concomitant state monopolization of the means for legally dissolving this relationship."
Wrongful death actions often results from the State’s sponsored corporate mainstream medicine, who invest more in hiding its poor than in healing its sick and in making deserts bloom. The SAD (standard American diet) first cause of death. Medical mainstream “Science” the second cause. “The most stunning statistic, however, is that the total number of deaths caused by conventional medicine is an astounding 783,936 per year. It is now evident that the American medical system is the leading cause of death and injury in the US. By contrast, the number of deaths attributable to heart disease in 2001 was 699,697, while the number of deaths attributable to cancer was 553,251 (US National Center fro Health Statistic, National Vital Statistics, Report, vol 51, no 5 March 14, 2003)." “ See also, “Is the US Health really the best in the World ?”, (JAMA. 2000:284:483-485): Doctor and Professor Barbara Starfield, (MD, MPH) who in 2000 attributed close to 300,000 useless American deaths due to medical iatrogenesis.
Opinio juris sive necessitatis or Opinio juris is the subjective element of customary international law as it refers to beliefs. The other element is state practice, which is more objective as it is readily discernable. To qualify as state practice, the acts must be consistent and general international practice.
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D" The vibrancy of our Democracy depends upon our willingness to ensure that the fullest range of voices and interests is represented and heard. This is what the fight for equal justice is all about." Hon. Robert F. Utter, Retired Justice, Washington State Supreme Court
"Universal access to the courts is certainly not a novel concept in the annals of jurisprudence. Access to the courts was prized and protected by the Romans over 2,300 years ago. (See Maguire, Poverty and Civil Litigation, 36 Harv. L. Rev. 361 (1964)). |
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“There can be no equal justice where the kind of appeal a man enjoys depends on the amount of money he has”.U.S. Supreme Court WILLIAMS v. SHAFFER , 385 U.S. 1037 (1967) 385 U.S. 1037 Willie WILLIAMS et al., petitioners, v. Joseph N. SHAFFER. No. 824. Supreme Court of the United States January 23, 1967.351 US 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956).
"Despite judicial reiterations of ATJ fundamentality by the United States Supreme Court, federal and state judiciaries, Congress, state legislatures, and the executive branch often ignore this fundamental constitutional right, making a mockery of "Equal Justice Under Law" carved above the Supreme Court. Even worse, much of the judiciary, case-by-case, spurn the fundamentality of access to justice, by often characterizing the impediments to or destruction of that right as a policy question. Policy issues are legislative, thus transitory; subject to powerful interests; and often purchasable. The only tenable rationalization for this view is that it is required by political (electoral) democracy, which is seen by some as trumping fundamental rights. Rarely does the unique American constitutional doctrine of separation of powers get raised. Nor does the right-bearer receive the protection of the law by their calling attention to Marbury v. Madison, and judicial review. Even less often is the character of the right itself understood, as pronounced almost 800 years ago in Magna Carta and protected in our founding constitutional document ? The Declaration of Independence, as well as in most state constitutions. Thus, at the conclusion of the Twentieth Century, this fundamental right was in jeopardy.
If we ask the question as to what would be meaningful ATJ in the Twenty-First Century, certainly it must include fealty to the values of Equal Justice Under Law. But its applications are not the same as those existing at the time of Magna Carta; nor during the continuing transition of the Common Law; nor in 1776, or 1789; nor at the mileposts of changing inclusiveness in American history and jurisprudence. In 1225, right-bearers essentially were feudal lords seeking to curtail the divine right of kings. The Common Law endured stasis and refurbishing. Its principal strength was its change. For hundreds of years, feudal landlords and nobility maintained rigid class lines, topped by royalty and the divine right of kings. The Industrial Revolution markedly changed the beneficiaries of the law, adding the rising bourgeoisie. When the U.S. Constitution was adopted, despite the values of the Declaration of Independence, slavery was institutionalized and protected. Women were excluded. And a white, land-owning gentry wielded power. To their everlasting credit, they adopted values that had permanence. Those values were not based or related to feudalism or capitalism, nor in the Nineteenth Century, change from a largely agricultural society to an expanding industrial one. Corporations historically were the creatures of the state, created by it, and subject to termination if they did not adhere to their charters. The century also witnessed the age of enlightenment, and the burgeoning of democratic ideas. The right to vote led to rising expectations, fueled by the freeing of the slaves, and their being included constitutionally as citizens and voters. The suffrage movement also dramatically accelerated rights consciousness.
At each stage, however, the privileged classes and their representatives retained legislative and executive power, and controlled the judiciary, who in the large saw the law from privileged eyes, and they fought desperately and successfully to maintain their power relationships. Although the 20th Century changed factually, and the fundamental constitutional values were generally unaltered, judicial constitutional interpretations were largely protective of the rich and powerful."
Leonard W. Schroeter*
Access to Justice Board
1325 4th Avenue, Suite 600,
Seattle, WA 98121-2539
Established by The Supreme Court of Washington, administered by the Washington State Bar Association |
CLICK HERE FOR THE WSBA ARTICLE
ARTICLE 1, SECTION 12 OF WASHINGTON'SCONSTITUTION
SPECIAL PRIVILEGES AND IMMUNITIES PROHIBITED.
"No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations".
AMENDMENT XIV TO THE US CONSTITUTION
Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws
" Unless and until we incorporate equal and meaningful access to civil justice freedom in our Constitutions, treating pro se and-or civil indigent litigants in the same way as well to do litigants who can afford 300 dollars an hour exhaustive tort law battles is like treating a one legged handicap person and an olympic athelete in a Marathon challenge the same way. In the face of a hungry shark, a sardine’s defense weapon is much weaker than a dolphin’s strength. Without normative leniency and State training to pro se litigants and legal financial aid to civil indigents (low and mid income class who can not afford long drawn out tort lawsuits), the universally (except in the USA, Saudi Arabia, Soudan and a few other dictatorships) recognized human rights principle of “equality of arms” is disrespected, as is violated the constitutional right of equal protection of the laws vis-avis criminal indigents (who have, a contrario, the right to free attorneys and experts and court expenses) and its constitutional derivative: the right to benefit from equal and meaningful access to the civil courts” Christian Pierre Joubert, gubernatorial candidate, Washington State, 2008.
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