An excellent article in the NCSC Publication Court Trends, written by Chief Justice Nathan Hecht of Texas and Illinois Supreme Court Justice Thomas Kilbride of Illinois, includes timelines and listings of the spread of the Commissions movement. It shows the movement starting in one place, Washington State, and accelerating in its spread to 34 states, with Puerto Rico, Oklahoma and Arizona joining the list in 2014. Financial support from the Public Welfare and Kresge Foundations for support work has played a big role in this success story.
This wonderful story does however raise two questions: Are there any good arguments left for not having a Commission, and what can be done within the community to help the “not yet” states become “yes” states? (Disclosure, I work in various ways with NCSC and the ABA on supporting expansion of Commissions, but these opinions are totally and completely my own.)
Some of the arguments I have heard against commissions are as follows:
We already work well together and do not need a Commission.
It may well be that the players — court, bar, community based legal aid — are indeed working well together already, but that is not the right question. The question is whether more might be done with the additional structure of a Commission. Many states have found that the convening authority of the state supreme court, using the tool of a Commission, has brought in other players such as the private sector, legislators, and administrative agencies. Such states should look at all the Commission acheivements and ask themselves whether they might be able to do more with a Commission.
We do not want to put ourselves at the political mercy of our Supreme Court.
It is certainly true that some state supreme courts have become more politicized, and that on occasion, there is a correlation between political alignment and views of access to justice, but more frequently successful Commissions have been able effectively to make the case that access issues transcend politics.
Moreover, a well structured Commission has the potential to provide a continuing and institutionalized voice and coordinating force for access regardless of changes in the political environment.
The groups are not on the same page, and there is no point in trying to get them there.
That is less an argument than a restatement of the challenge. The success and impact of the Commissions, so well documented in the Trends article, shows that it is worth the effort. Which leads to the next question, what can those in states with Commissions do to fill the gap in the other states.
It seems to me that the following would be useful:
- Increasing the documentation of Commission successes
- Using constituency networks to talk to those with decision-making authority about the advantages of Commissions
- Strengthen the national activities and coordination of the Commissions Network so that the advantages of participation become more obvious
- Gently asking friends in the “no” states why they are depriving those in the Commission’s Network states of their help and support.
Any other arguments against Commissions, and any more ways to move them forward?
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Mary Ryan see to me to have made a compelling argumnnt,
As a “self-represented” individual, I do not have the same view that the existence of commissions transcend politics, The “players” appear to be – first and foremost – the same players that are part of an elite and exclusive group of individuals/organizations, governmental entities, who do not view access to justice as an individual citizen’s Constitutional right, but rather a privilege subject to their review and determination. At least, that is my personal experience and that of a number of other American citizens who have chosen to represent themselves. You seek answers from the same community that has barricaded access because they view American citizens as “lay” people or “subjects” incapable of exercising their rights respectfully in the Courts. We are often viewed as a menace, annoying, a chore to deal with and become subject to other unkind words and gestures from members of the Courts, bars – and yes – even those who are involved in community based legal aid. Legal Aid was a Congressional response to many of the arguments regarding the poor’s inability to access the courts. Billions of dollars were generated, again supported by the taxpayers.
The possibility that many states have found that the convening authority of the state supreme court and the tool of a Commission, has brought in other players such as the private sector, legislators, and administrative agencies sounds like a positive thing. But a missing key here, is that there are missing “players”, those being the citizens who have unalienable rights including the right to petition the Court for their grievances guaranteed by the First Amendment of the United States Constitution. That right is not contingent on “affordability” as many suggest, but, remains contingent on the decision of the individuals who have been given the authority to administer justice to and have taken an Oath to uphold the Constitution preserving the Constitutional rights of citizens whether they are represented by a member of the bar or not. These commissions can and must be inclusive of American Citizens and treat them as primary “players” and further, must participate in the facilitation of knowledge through education – otherwise, the commissions will become simply another layer of bureaucracy that citizens must work through to begin their already challenging journey through the court “system.” Access to the Courts cannot be reduced to affordability. I believe that a critical factor which continues to be ignored is the reality that the infrastructure of the judicial system is already in place and is financially supported by the taxpayers for ALL to access, not just an exclusive few who hold a bar card. If the mission of the Commission is to facilitate the access to justice to all, then funding is not an issue. If the Judicial “system” if operating in compliance with the Constitution – it should naturally be acting as an Access to Justice Commission. Access to justice is not only the mission of the Judiciary – but is obligatory. So, those states who are saying Nay may a) may have a strong relationship with its bar membership and do not want the competition of pro se litigants, or do not want to encourage citizens to represent themselves for various reasons.or b) Those states may recognize that their Judiciary is upholding the Constitution, is functioning properly and has great respect for all citizens, including those who choose to have the courage to enter a courtroom and represent themselves.. I believe that this is an alternative perspective, but is a perspective that needs to be heard.