Issue: February, 2009
Author: Hon. Timothy C. Day
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The Wyoming Road to Equal Justice
The Wyoming Supreme Court established the Wyoming Access to Justice Commission on December 16, 2008. This is a monumental step on the road to equal justice in Wyoming. The creation of a formal commission to assess, develop and coordinate resources to provide civil legal aid for the poor, the near-poor, and the disadvantaged embraces the reality that those who cannot afford a lawyer cannot afford justice. Indigent litigants without counsel routinely forfeit basic rights due to the absence of counsel without regard to the facts or the law.
This is not to say we are anywhere close to the ideal we seek to insure equal justice for all. In some respects not much has changed in the legal services landscape in Wyoming in the last several years, except for the worse. In December of 2001, the president’s column of the Wyoming Lawyer painted a bleak picture of the unfinished business of insuring access to justice for all:
We have about fifteen lawyers in Wyoming Legal Services and the Wyoming Coalition Against Domestic Violence and Sexual Assault serving the poor (in non-criminal matters) in Wyoming, a population of between 50,000 and 55,000. Although they handle over 3,000 cases per year, it is estimated they only meet twenty per cent of the need in the income eligible population. That is about the national average according to the ABA. This is not to mention the underserved or the near-poor who are not poor enough to qualify for legal aid, but who cannot realistically afford a lawyer. Moreover, these programs to serve the poor can only accept certain kinds of cases due to restrictions of the federal funding they depend upon - funding that has been diminishing and is ever in jeopardy of extinguishment. There is no state funding. It is to be noted that Wyoming is one of only ten states that provide no direct State appropriations or court fees or fines for civil legal services. We are in the bottom third of the country in legal aid spending per capita for our poverty population.
We now have even fewer legal aid service lawyers serving the same or greater eligible population, and there is still no reason to believe that we are meeting any more than twenty per cent of the existing need. Embarrassingly, Wyoming is now listed as one of only three states that provide no direct State appropriations or court fees or fines for civil legal services.
This paradigm was recognized and substantial efforts were undertaken in the past eight years to address our duty as lawyers to advance the principle of equal justice for all. In 2001, Chief Justice Lehman established the Citizens Access to Courts Committee. Recognizing one of the greatest unmet legal needs is in the area of domestic relations, the committee developed uniform pro se divorce forms to ease access to the courts for litigants seeking marital dissolution. In an effort to assist pro se litigants in filling out these forms, and in a simultaneous effort to make it easier for lawyers to provide limited legal services within ethical parameters generally, the committee recommended rule changes that were implemented by the Supreme Court allowing limited legal representation.
Another substantial effort to encourage and increase pro bono representation by lawyers was spearheaded by the Legal Aid Services Committee generally and past Bar and Foundation president Joe Bluemel specifically. Recommendations to allow up to three hours of CLE credit for pro bono representation or mentoring resulted in concomitant rule changes (2004). The establishment of a pro bono coordinator position at the Wyoming State Bar Foundation and a lawyer referral position at the Wyoming State Bar were also significant.
Despite the noteworthy and laudable efforts in the pro se and pro bono areas, it became clear that these measures alone would not be sufficient to open the doors of justice to all. The Legal Aid Services Committee as far back as 2002 identified the ultimate need to establish an Access to Justice Commission. The tack taken by the committee was to lay the groundwork for such an initiative by conducting a statistically defensible legal needs assessment. The premise was that by identifying the existing needs and resources, it would be objectively apparent that critical action would be necessary to address the dramatic unmet legal need; the assessment would be the precursor to creating an Access to Justice Commission.
A legal needs survey instrument was developed in 2003 but never implemented. In 2005, the committee renewed its efforts to implement a legal needs assessment. In 2006 the committee presented an Access to Justice white paper to the Officers and Commissioners of the Wyoming State Bar, recommending their endorsement and financial support for the assessment. Upon their approval and with the pledge of funds from the Bar, the Bar Foundation, the Federal Courts Committee, and the Wyoming Coalition Against Domestic Violence and Sexual Assault, the committee sought required additional funds for the project from the Legislature in 2007 and 2008. Although the Supreme Court graciously agreed to include the funding request within its budget each year, the Legislature excised the needs assessment budget line both times.
In the aftermath of these defeats, Wyoming Legal Services, Inc. Executive Director, Wendy Owens, made a report to the Board of Judicial Policy and Administration in June of 2008 that included a recommendation to establish an Access to Justice Commission. The Board voted to consider the recommendation at its next meeting. In the meantime, the Legal Aid Services Committee drafted a presentation to the Board recommending the creation of an Access to Justice Task Force to study and report to the Board regarding the form and mission of an Access to Justice Commission. The Board created the Task Force at its September 2008 meeting. The Task Force, under the leadership of Justice James Burke and Bar President Rick Lavery, worked quickly and recommended the creation of the Access to Justice Commission in little more than two months. The Board then recommended the same to the Supreme Court and the Commission was established in December 2008.
Timing, of course, is everything. Despite all the efforts that had gone before it, a galvanizing factor in creating the Access to Justice Task Force and ultimately the Access to Justice Commission was that Wyoming Legal Services, the primary provider of legal aid services in Wyoming, lost its federal funding this past fall (interim services are now being provided by Legal Aid of Wyoming). Although this development was painful and impacted many individuals, some comfort may be taken from the idea that with every crisis there is opportunity. With a formal Access to Justice Commission now in place, significant and positive change in the legal aid services landscape is within reach. It will require earnest effort from each of us as we share the unfinished business of insuring equal justice for all.
Thou shalt not ration justice.
Judge Learned Hand
Hon. Timothy C. Day is a past president of the Wyoming State Bar and has been the chair of the Bar’s Legal Aid Services Committee since 2005. Judge Day currently serves as the Circuit Court Judge in Teton County, where he formerly held positions as the County & Prosecuting Attorney and as a partner in the law firm of Ranck, Schwartz & Day.
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