Jonathan Lippman on Confronting the Crisis of the Unrepresented

A Proactive Judicial Branch: Confronting the Crisis of the Unrepresented
Hon. Jonathan Lippman

I am so honored and pleased that Dean Diller invited me to deliver the Cardozo Law School Dean's Lecture. I hope that my remarks today will serve to spur your interest in the evolving role of the state courts as an integral part of our society and meeting the challenges that we face. From my point of view, the state courts are where it’s at today – where 97% of the nation’s judicial business is conducted, where more cases are heard in a single day than the entire federal judiciary hears in a year. And I say this not to diminish the work of the federal courts in any way, because their caseloads are immensely challenging, complex and important, but rather to emphasize that it is in the state courts that the average American interacts with the justice system – and it is in the state courts, more so than anywhere else, where the 21st century issues affecting the daily lives of our citizens and the quality of life in our communities are being confronted head-on by judges working in the trenches to resolve the most intractable human problems of our time – the scourges of domestic violence and drug-related crime in our criminal courts . . . family breakdown, child abuse and neglect in our family courts . . . home foreclosures, evictions and consumer debt defaults in our civil courts, especially during these difficult economic times. Let’s face it, our state courts are the emergency room for society’s worst ailments. And through it all there is one constant -- the growing number of litigants, who cannot afford the legal assistance they need to deal with the most pressing legal problems in their lives. Last year alone, 2.3 million litigants appeared in the New York courts without a lawyer, including:

• 99% of tenants in eviction cases in New York City, and 98% outside the City
• 99% of borrowers in hundreds of thousands of consumer credit cases in New York City
• 97% of parents in child support matters in the City, and 95% statewide
• 63% of homeowners facing foreclosure who appear for mandatory settlement conferences statewide, and 70% in New York City

So, with this introduction, I would like to talk to you this evening about the crisis in civil legal representation for the poor . . . about what the Judiciary is doing to make adequate legal representation a reality in New York . . . and, more broadly, about the growing involvement of the state courts in public policy issues that affect the administration of justice. I know that this particular law school, this faculty and this student body, care passionately about this issue, as I do. You have been doing your part and more, through your Housing Rights clinic and the Bet Tzedek Legal Services clinic, to assist the vulnerable -- the poor, the sick, the elderly -- and alleviate the crisis of the unrepresented in our City and State. And I want to personally thank Dean Diller for his services and contributions to the Task Force to Expand Access to Civil Legal Services. Matt, I could not be more grateful to you. As you know, the recent economic collapse has had a devastating impact on so many of our neighbors. The number of New Yorkers living at or below 200% of the federal poverty level -- that is, the poor and working poor -- increased from 5.6 million to 6.3 million in just one year, from 2008 to 2009. This only confirms what judges and court staff have been reporting -- that many of our courtrooms are standing room only, filled with frightened, unrepresented litigants -- many of them newly indigent -- who are fighting to keep a roof over their heads, fighting to keep their children, fighting to keep their sources of income and health care. These are often the most vulnerable in our society to begin with – the elderly, children, single parents, the disabled and mentally ill, abuse victims, and so many more. Unfortunately, for every one of these persons lucky enough to be represented by a legal services provider here in New York City, another eight are being turned away because of a lack of resources. With the economic downturn, the availability of civil legal assistance in New York has never been more threatened. The state's leading funding source in this area, IOLA, has seen its revenues plummet to less than a quarter of what they were just a few years ago -- from $36 million to $8 million. This critical situation led us to put $15 million in rescue funding in the judiciary's current budget for civil legal services -- something we had never done before but which was absolutely necessary as a moral obligation of our judiciary and our profession, and in order to keep legal service providers in business -- but we now know that it was little more than a band-aid on a gaping wound. Last Fall, I convened four public hearings around the state -- in Manhattan, Brooklyn, Albany and Rochester -- to assess the extent and nature of the unmet civil legal needs in New York. I was joined at each hearing by the highest leadership of the

State Judiciary and the State Bar Association. Assisting us was The Task Force to Expand Access to Civil Legal Services, a blue-ribbon panel of professionals who I appointed to do the hard work of developing a comprehensive blueprint for how New York can do a much better job of making legal representation and assistance available to low-income litigants. On December 1st, on the strength of the statewide hearings and the Task Force's comprehensive findings and recommendations that showed that New York is at best meeting only 20% of the civil legal services needs in the state,1 we submitted a Judiciary budget for the coming fiscal year that requests $25 million dollars in funding for civil legal services. As with the IOLA funding last year, I have put these monies in the Judiciary budget because that is where they belong – civil legal services for the poor is every bit as much a part of meeting the Judiciary’s responsibilities as keeping the doors of our courthouses open. It is that fundamental! This $25 million in funding is to be the first installment in a series of annual increases, leading eventually to an increase of $100 million in annual funding for civil legal services over the next four years. It is highly unusual for a State Judiciary and its Chief Judge to take such a prominent and active leadership role on a policy issue of this kind – convening hearings, making recommendations that affect the public fisc, and basically driving the overall debate within the State. There was no precedent here or around the country that we could look to in determining how far we should go in pushing -- and I use that word advisedly -- our state government to provide a substantial and reliable state funding stream for civil legal representation. Yet, I have no doubt that what we're doing, as well as the way we’re going about it, are without question both necessary and appropriate. Indeed, as Chief Judge, how could I do any less? From my perspective, there is no issue more basic to our constitutional reason for being than providing equal justice for all. That is our mission. That is who we are. But how can we fulfill that mission when millions of New Yorkers who desperately need the protection of our laws are systematically being denied legal assistance and representation because they cannot afford it? If ever there was a time and place for the judicial branch to be proactive on a social policy issue -- this is it. Please understand that when I speak of the judiciary being proactive here, I do so not in the context of adjudication. Judges and courts in their legal opinions should not be advancing their personal social or political agendas at the expense of the constitution or the laws enacted by our democratically elected representatives. However, I believe that the judiciary, as an institution, has a very important and very appropriate part to play in promoting reforms that are essential to our constitutional mission and to the administration of justice – reforms that ultimately enable us to better serve the public, our ultimate constituent. Something that is not often discussed is that the judiciary has a role that goes well beyond its function of adjudicating cases – that is, its role of overseeing the administration of justice, including the operations of the courts, the regulation of the legal profession and, most certainly, making sure that our system of justice is meaningfully available to all of our citizens, regardless of income or background

Of course, the problem of equal justice for the poor has always been with us. In the past, the judiciary as an institution has used moral suasion to keep access to justice a societal priority, with our exhortations directed at the other branches of government and the organized bar. However, we have been hesitant to assume a bolder or more assertive role, out of concern for the separation of powers and our constitutional persona as the nonpolitical branch of government. But I believe we can no longer afford to be passive or reticent on this issue. The time has come for the judiciary to lead -- to speak out and take bold steps on behalf of New Yorkers, particularly those struggling to access the essentials of life -- shelter, food, personal safety -- those who are being denied access to justice by reason of indigency. Obviously, this is a complex subject -- and controversial to many -- because it implicates different areas of social and economic policy. Nonetheless, I believe it is the solemn duty of judicial leaders, and of the profession, to work tirelessly for positive change on an issue that is so intimately connected to the core role of our institution, and to our very reason for existing. On the criminal side, as you know, legal representation for indigent defendants was recognized as a constitutional right in 1953 by the Supreme Court in Gideon v Wainwright. At present, no such rights attach in civil cases, but that does not mean that we are therefore absolved of our responsibility to make the machinery of civil justice work for all of our citizens. What is at stake is nothing less than the legitimacy of our justice system. The rule of law -- the bedrock of our society -- loses its meaning when the protection of our laws is available only to those who can afford it. This kind of leadership by the judicial branch, the non-political branch, represents a philosophical shift in the traditional role of judges and courts in this country. But what some may not realize is that this shift is already well underway in various contexts, in response to the rapid social upheaval of recent decades that created so many complex and nontraditional challenges for the courts, with dockets increasingly driven by drug- related crime, family dysfunction, and economic problems.

Over the last two decades or so, state judiciaries here in New York and around the country have been generating new ideas and testing new approaches to our caseloads. Problem solving courts are probably the best example of how state court innovations have led to major policy changes in how our nation – and increasingly the world -- deals with some of the greatest challenges of modern life – drugs, alcohol abuse, domestic violence and mental illness. For years, the same nonviolent defendants would come into our courtrooms, again and again, literally in a revolving door, with little or no attempt made by the criminal justice system to solve the underlying problems that brought these people into the criminal justice system in the first place. Now, drug treatment courts, community courts, mental health courts, domestic violence courts, veterans courts, and others, have transformed the judicial role, so that judges today are pro-actively addressing the human frailties that bring so many offenders into our courts. By bringing the coercive power of the judiciary to bear through court- ordered and supervised treatment programs for drug and alcohol abuse, balanced with housing, job assistance and other services designed to reclaim lives, the New York courts have been the leaders of a criminal justice revolution that has swept the nation and is today producing better outcomes for offenders, communities and society at large. One of the lessons of the problem solving revolution could not be more relevant to the crisis of the unrepresented -- the need for judicial leadership and innovation, and the need to be accountable and responsive to the needs and expectations of the public. We cannot and will not treat our citizens as faceless numbers on crowded court dockets, without regard to whether the litigants appearing in our courts are being adequately represented . . . without regard to whether their rights are being properly protected . . . and without regard to whether justice is really and truly being done. We cannot, and will not, perform our constitutional duties in a vacuum, divorced from the harsh realities we see in our courtrooms every day, including the millions of litigants who cannot afford meaningful access to our civil courts. As judges, we are witnesses to how the scales of justice can be out of balance, and to how the lack of civil legal assistance is devastating to real human beings and their families. And from a systemic point of view, we see how the entire civil justice system is burdened. Adjournments are much more frequent, court appearances require more time from judges and court staff, and cases take longer to reach a disposition. As a result, court operations slow, dockets become clogged and litigation becomes more expensive for everyone. Ultimately, the extra delays, frustration, and expense leave everyone with a less efficient and effective legal system.

What too many people fail to recognize is that expanding civil legal representation at public expense actually pays for itself many times over. At the hearings last October, business leaders, bankers, property owners, health care providers, and government and community leaders testified that increasing access to legal assistance benefits their institutional performance and financial bottom lines. Eviction proceedings can be avoided when tenants obtain legal services early on to help them secure the unemployment benefits, health insurance coverage, food stamps, and housing-related public benefits they need to help them pay the rent. Banking industry representatives testified that providing legal assistance to foreclosure defendants is the right thing to do from both a bottom-line and social-policy perspective. It is usually in everyone’s interests – lenders, borrowers, servicers, and investors – for homeowners to keep their homes and make payments they can afford, so that we have stable communities with safer and better maintained neighborhoods. In fact, the Task Force found that civil legal services save our State and local governments hundreds of millions of dollars a year by preventing unwarranted evictions, avoiding foster care placements, and by bringing federal funds into New York. Federal monies have a multiplier effect when they are spent here and flow through the State economy. The Task Force estimated that the full economic benefit to the State from federal monies totaled close to $900 million in 2009. And there are tremendous taxpayer savings from reducing the costs of social services, incarceration and homelessness. In total, there is a return to New York of close to five dollars for every dollar spent to support civil legal services. Providing civil legal assistance for the poor and the working poor makes sense on so many levels – legal, moral, economic. And, yet, the World Justice Project, which promotes the rule of law in countries around the world, released the results of a global survey last October which found that the United States ranks lowest among the 11 developed nations surveyed when it comes to providing access to justice to its citizens - - and lower than some third-world nations. With regard to the affordability of legal counsel in civil disputes, the United States ranks 20th out of the 35 nations surveyed, below Mexico, Croatia and the Dominican Republic. We must and can do better. Equal access to justice is one of the most fundamental obligations any nation owes its citizenry.

We all know that these are difficult fiscal times for New York State, but I don't believe that access to justice is a luxury, affordable only in good times. And I don't believe we can allow funding to fluctuate according to the ups and downs of the economy -- what a counterproductive approach this is when we know full well that the need for civil legal services is greatest when the economy is weakest, because it is then that most people are struggling. We don't stop funding schools or hospitals because the economy is weak. Civil legal services for the poor is as important a priority for our society and for state government as these other critical areas. And make no mistake, our governmental leaders in New York are not wrong when they say that we must dramatically cut government spending in all areas in line with the revenues available to us; our books must be balanced. But even with that need for fiscal responsibility as a given, we must still stand for something . . . for the values that have made New York great . . . and for the principles that every civilized society has endorsed going back to biblical times. The Old Testament mandates: "justice, justice shall you pursue for rich and poor and high and low alike." This is nothing new to any of us . . . this is what we are all about here in New York and it is so much a part of the ethical underpinnings of our society and our nation. And I want to be very clear about something. I am not suggesting that every single person with a legal problem must be provided a lawyer at public expense. What is being recommended is a measured, common sense approach that recognizes our obligations to the less fortunate among us, while at the same time prioritizing our resources, particularly in light of today’s fiscal realities. We must focus, first and foremost, on providing counsel to address those unmet legal needs of the poor and working poor that involve the “essentials of life” – a roof over one’s head, family stability, personal safety free from domestic violence, access to health care and education, or subsistence income and benefits. That is the best way that we can begin making immediate, meaningful progress to address this crisis. Make no mistake -- we need a much greater financial commitment to civil legal services from the state. But in the end, it can’t be only about money -- and money alone will never solve all our problems. The Task Force recognized this very clearly when it emphasized the continuing need for a comprehensive, multi-faceted approach to the problem. That means that where the essentials of life are not at stake, the entire legal community needs to work together to foster more pro bono programs from law schools and bar associations and the courts, and more innovative uses of technology and self- help programs to assist unrepresented litigants.

As Chief Judge, I am committed to implementing the Task Force's recommendations, beginning with passage of the Judiciary’s budget containing the first $25 million installment in new funding for civil legal services. I believe this is my responsibility as the constitutional steward of our justice system and the person entrusted with ensuring the impartial administration of justice. I am committed, on behalf of the Judiciary, to being out front and proactive on this issue, educating the other branches of government and the public on what is happening to poor New Yorkers in our courtrooms, and how it is harming all members of our society. This kind of proactive judicial leadership is essential if the courts are to function effectively in the complex world we live in today, where the judiciary, again, is in a real sense the emergency room for the social dysfunction reflected in our state court dockets. The state courts, of necessity, have become engines for reform on so many issues, testing new ideas and transforming the way justice is being dispensed in the 21st century. And our next and greatest challenge now is ensuring equal access to our civil justice system for all of our citizens. Every society is ultimately judged by how it treats its most vulnerable citizens. And for the legal profession and the Judiciary we can and should be judged on whether we provide meaningful legal representation for the poor, particularly when their very lives and well being are at stake. What could be more important? It is absolutely critical that we succeed in meeting this challenge, because if we fail with regard to this most basic of our constitutional obligations we become easy prey for those who seek to undermine the courts and the rule of law. It is not lost on me that I am speaking to you tonight at Cardozo Law School of Yeshiva University, and so I am reminded of what it says in the Pirke Avot, the Ethics of our Fathers: “The sword comes into the world because of justice delayed and justice perverted.” And what more compelling example of justice perverted than where poor litigants do not have equal access to our civil justice system . . . where the scales of justice are weighted against them when they step foot into our courthouses? The pursuit of justice is the paramount responsibility of our profession. I urge all of you to join in this pursuit. If not you, the lawyers of tomorrow, and me, and the members of the Judiciary, and our entire noble profession (and it is noble!), then who is going to lead in this effort? And if not now, during these terrible economic times, then when? I submit to you that this is very much our obligation together, the obligation of a . . . yes . . . proactive judicial branch that recognizes access to justice as the critical issue of our times, and of a stalwart and vibrant legal profession committed toward that same end. Indeed, nothing could be more critical to the future of our courts, our profession and our society -- all of which are premised on the ideal and reality of equal justice for all under the law.