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From the President

The budget and the crisis in the judiciary

By Bill Hebert
President, State Bar of California

“I cannot believe that a republic could subsist if the influence of lawyers in public business did not increase in proportion to the power of the people.”

                                             ― Alexis de Tocqueville, Democracy in America

Bill HebertAlexis de Tocqueville was the most perceptive observer of America our country has ever seen, and when he proclaimed that the influence of lawyers in our society was directly tied to the power of the ordinary person, as opposed to an entrenched class or the status quo, we should sit up and listen. In two other articles in this month’s California Bar Journal, San Francisco Superior Court Judge Curt Karnow gives his opinion on the impacts of the closure of courts in San Francisco and elsewhere, and our reporters portray the catastrophic effects of the current budget cuts to the judicial branch. Reading de Tocqueville now is especially important when our judicial branch is facing a crisis unmatched in our collective memory. 

In many ways, de Tocqueville expressed the State Bar’s purpose as an association of lawyers united under an independent judiciary. If we unpack the meaning of de Tocqueville’s statement, I think we can draw three conclusions relevant to today’s court budget crisis that affect our democracy. 

We need an independent judiciary

Lawyers can have influence in public life only if we have a truly independent judiciary: that is, the judicial branch must exist as a co-equal third branch of government, which is not dominated or controlled by the other two branches. Any society that has allowed its judicial system to fall prey to politics has yoked itself to tyranny. At the bar’s Annual Meeting in September, you will have the opportunity to see how governments that want to restrict freedom seek to dominate their courts. Justice Richard Fybel of the Second District Court of Appeal will lead a discussion of how the judiciary in Nazi Germany failed to stand up to the Third Reich and allowed without protest the extermination of millions of Jews, gypsies and the disabled. At a luncheon on Saturday, Sept. 17, the Honorable Albie Sacks, former Justice of the Supreme Court of South Africa, will tell about his experiences first as an activist in the Defiance of Unjust Law Campaign and ultimately, after losing an arm and sight in one eye in a bomb attack, a member of the Constitutional Court of South Africa. Democracy loses when the government controls the judiciary. 

The more lawyers in a society, the more freedoms society enjoys

The key phrase in de Tocqueville’s observation rests in the “influence of lawyers in public business.” He cleverly collapsed “public” and “business,” because a democracy cannot exist without a government that allows regular citizens to go about their business, both public and private. Lawyers preserve democracy by engaging in the business of our public life, whether it is incorporating a business, planning an estate, resolving a dispute, filing a lawsuit, holding public office or holding a position of trust on the board of a school, church, temple or synagogue. 

A number of our lawyers file civil suits in court, or defend accused criminals, in cases that we say “push the envelope.” They seek to extend, in individual cases, the rights of the many. Sometimes they win; sometimes they lose. But the key point is that they have the freedom to take that chance. We lawyers, no less than bankers or hedge fund managers, are entrepreneurial. We take risks. The more lawyers who are available in society to take ever-increasing risks, the more freedoms the rest of us might enjoy. Freedoms of: owning property, marrying someone of a different race or the same sex, walking down the street unmolested, receiving state benefits or working without discrimination or harassment. The list goes on and on. If the power of people in our democracy is going to grow, our society needs enough lawyers to represent everyone, not just the few who have the ability to pay us by the hour, or where the dollar outcome justifies a contingent risk. We need lawyers of every kind, who will represent the indigent, the criminally accused and the middle class. Right now, many of our citizens cannot afford lawyers. 

Without open and independent courts, and lawyers to represent people, there is no democracy

De Tocqueville’s observation about our democracy contains one critical insight ― courts must work unfettered by the political dictates of the other two branches. Without an independent judiciary, lawyers would have no influence in public business (because lawyers’ efforts would be squelched by political power), and democracy would be worth nothing. Without enough lawyers to represent those clients who need them, our freedom remains limited. 

The other article in this month’s Bar Journal reports on how lawyers and our clients are losing access to the courts. Altogether, the judicial branch has contributed $1.1 billion in hard dollar solutions to the 2011-2012 budget in California: ongoing reductions of $350 million, a one-time cut of $310 million, and $440 million in loans to the state’s general fund. These cuts might require court closures, layoffs, salary reductions and furloughs. 

Our Chief Justice said recently that the current budget crisis threatens our democracy, an undeniably true statement. Without adequate funding, our courts will bolt their doors and shutter their windows. Without access to the courts, our citizens will lose their fundamental right to get their disputes resolved. Without such resolutions, one party or another will suffer. The party that will usually suffer is the impoverished one: the party that needs access to the courts the most because he or she is least able to afford the delay caused by court closures. Who are these parties? The personal injury victim who doesn’t have the money to pay his medical bills, but is counting on a recovery in his lawsuit to keep his creditors at bay; the small business owner who needs to recover payment on a debt to stay out of bankruptcy, but won’t be able to get a trial date for three years; the insurance policy holder who has suffered a catastrophic loss, but can’t get a court date for a judge to interpret the policy language. Delay favors those who own property and have the money. Favoring the “haves” against the “have nots” is antithetical to democracy. Open courts help to level the playing field of capitalism and democracy. 

In our democracy, leveling the playing field is especially important in the provision of legal services to the poor, and nowhere is the need felt more keenly than in our rural areas. In the past I’ve written about the need to support legal services to the poor in rural California and the need to support the Justice Gap Fund, which provides money to legal services throughout California. More than ever, we lawyers must open our wallets and give to the Justice Gap Fund and our nonprofit legal services organizations in California. Last month, we heard just one example of the need to fund legal services to the poor through the Justice Gap Fund from a lawyer who described her client’s dire straits in a rural county that has just one civil courtroom. The client is a disabled woman who has a life tenancy in a home left by her parents, but the investors with the remaining interest have removed all the accessibility features, making it impossible for her to continue living there. The suit seeks to have the investors restore the house to its accessible condition. But without a court and a judge to hear her case, it is likely that she will continue to survive in unfit living conditions. Her story is one of thousands in our state. 

The next time you hear we have too many lawyers, remember that the greatest observer of our democracy would disagree. De Tocqueville said the power of the people in relation to their government is in direct proportion to the number of their lawyers, and that for their lawyers to be effective, we need open and accessible courts. As lawyers, we should find a way to support funding for our courts and for legal services to the poor. It doesn’t take much. If every lawyer donated $100 to the Justice Gap Fund, we would raise $22 million to support legal services to the poor in our state. I urge you each to actively oppose the closure of our courts and to give generously to the Justice Gap Fund to help the neediest win access to justice.