Unsung Heroes: Equal Justice Under the Law
By Hon. Donovan W. Frank

When we were each sworn in to the bar, we took an oath to follow the Constitution. We each made a promise to provide every man, woman, and child in our state equal access to justice, and to treat every person with patience, dignity, and respect, regardless of their race, gender, socioeconomic class, religion, creed, or standing.

Especially in these difficult economic times, the true measure of the Constitution and our civil and criminal justice system is found in the way we treat those individuals most in need of the Constitution's protections, including our communities of color, the disabled, women and children, and generally the poorest among us. So how are we doing? How are the vast majority of low-income people doing? Do all citizens really have equal access to justice? And, whether they do or don't, how do those citizens perceive us these days?

Recently I was speaking to a group of college students at a night class, many of whom were single mothers. After class, a single mother of a young child who was in the midst of a divorce came up to me with tears in her eyes and said, "Can you help me find a lawyer? I can't afford one. I have been placed on a waiting list. Everyone I talk to is too busy." She went on to tell me, in between the tears, about her situation.

She wanted what most mothers want who are trying to get access to the court. They need access to a lawyer and they want fair and considerate treatment. All they want is what most of us have. They want to wake up in the same home with their children ... they want decent housing ... they want proper health care ... they want a fair custody/visitation order ... they want protection from family violence ... and the list goes on.

It is impossible for any citizen to respect the rule of law if it is not extended to each and every citizen. The woman I met felt disenfranchised. I didn't ask her, but I am sure she does not believe the words that are engraved at the top of the United States Supreme Court building in Washington, D.C.: "Equal Justice Under the Law." Her unmet need for legal services and representation damages us all. Her perception is consistent with the Minnesota Supreme Court's Racial Bias Task Force Report that initially came out in May 1993, followed by the Implementation Committee's Report, and many subsequent studies -- including the Penn-Stageberg Report -- that show that women and children, persons of color, and the poor are disproportionately affected when there is a lack of adequate funding for legal services. And when that happens -- and it is happening and has been happening for many years -- all of those individuals continue to believe in two standards of justice: one for the rich and one for the poor. And that perception is devastating in so many ways to our system of justice and the legal principles this country was founded upon. The feeling of injustice permeates a person's feelings about society as a whole. None of us want our children growing up believing that the law is only for the rich and powerful.

A necessary inquiry is what are we doing about this real and perceived unfairness and this unmet need for legal services for low-income people?

One thing that I do know is that it is incumbent on each of us in the legal system to provide everyone their day in court, regardless of their income. This principle, more than any other, is the foundation of our justice system. After serving as a state trial judge for 14 years, I can verify that there is a direct and substantial relationship between funding for Legal Aid and the ability of the court system to provide people with the equal access to justice that the Constitution contemplates.

Despite the great partnership that exists between Minnesota Legal Aid programs, private and public lawyers, the Legislature, and the federal and state judiciary, and the commitment that virtually all of us have to try and meet the legal needs of low-income citizens, Legal Aid remains vastly underfunded and, as a result, understaffed. That also means that lawyers and nonlawyers are also underpaid. The damage is more than low salaries. Legal Aid lawyers are passionate, committed advocates. They are not in this fight for the money. But when year after year passes with the lack of proper funding, we send the wrong message to all people -- especially new lawyers -- about how society values or does not value such a high calling of service to the poor.

Law schools must be especially vigilant, because they have a unique opportunity and obligation to inspire students to provide legal services and pro bono work in addition to instilling in every law student at least two things: that it is a privilege to practice law; and that lawyers have an obligation to give back to their community. What society needs -- and how we all benefit -- is for law schools to turn out passionate, effective advocates who have instilled in them the courage to combat injustice. Unfortunately, many new lawyers are often unable to pursue a position with a Legal Aid organization, not only because of low salaries, but also because of the debt load that most recent law school graduates face. We need to reexamine and expand debt forgiveness programs for those passionate new lawyers who want to pursue a Legal Aid career.

Nor is vigilance an issue only for the law schools; it needs to be exercised by the trial courts as well. My view on this subject is the same as when I sat on the state trial bench: trial courts must not yield to the temptation of taking short-cuts and loading up high volume calendars in the name of judicial efficiency during these difficult times. Hustling people through the system is not the means to insure equal access to justice, and "equal access" is a standard of justice below which we should never go in the name of judicial efficiency, or under the guise of lack of resources. That is the constitutional vigilance that trial courts must exercise.

As the funding for Legal Aid programs has been reduced, the demand for their services has increased. As a result, a number of Legal Aid organizations, faced with increasing case loads, have had to resort at times to waiting lists for the poor: lists on which people must wait before they can gain access to the system. This phenomenon is unknown to most clients, except the poor. On a number of occasions, when I was a state court judge in Northeast Minnesota, and occasionally since I have been on the federal bench, I have been confronted with situations where I have had to call and essentially beg private lawyers to take a case because I knew that Legal Aid was swamped. The court is damaged each time a person suffers such an injustice. Society is also damaged when any citizen is denied access to legal representation. Plainly, money should not make the system talk.

The decreased funding for Legal Aid exacerbates the gap between the haves and the have-nots, thus strengthening the perception of injustice. Increasing this funding is not simply necessary to ensure substantive legal equality, but to bolster the confidence of the citizenry in our public institutions of government, including the Court and the legal profession.

The cutbacks in funding to Legal Aid reflect much more than tougher economic times. They reflect, in my judgment, misguided priorities and a lack of understanding of the value of these legal services -- not just to the poor, but to society as a whole. In many ways, it is an issue of priority, not a resource problem.

Recently, we have heard about the Minnesota State Bar Association's efforts to persuade Minnesota lawyers to donate more of their time to pro bono efforts -- a truly daunting task that is having wonderful results. While I applaud this effort, and fully support expanding pro bono work in every instance, it troubles me to think that anyone might find this to be a substitute for properly funded Legal Aid programs. I do not believe that anyone should feel that an increase in pro bono work from the legal community somehow justifies cutting funding for Legal Aid. Pro bono legal work is not a substitute for full-time Legal Aid attorneys who devote their full attention, passion, and expertise to providing legal assistance to the poor. The only real way to ensure justice for the poor is to ensure funding for Legal Aid programs. It is the plain and simple truth.

I want to thank all of the lawyers, especially every Legal Aid lawyer, who has volunteered their time this past year. You have each kept the constitutional promise that you made when you were sworn in to provide equal justice to all and equal access to all. You are the unsung heroes.

The foregoing article was adapted and excerpted from remarks Judge Frank delivered at the SMRLS Campaign for Legal Aid luncheon, November 25, 2003, in St. Paul.

HON. DONOVAN W. FRANK is a United States District Court judge for the District of Minnesota. He served on the Minnesota trial court bench for 14 years before being appointed to the federal bench in 1998.