Page 127 - Impact: Collected Essays on Expanding Access to Justice

contrast, he does not allude to any of the literature regarding an enhanced role of the judge that might also “fill the void” by the court’s eliciting facts necessary to reach a just determination by asking open-ended and, in some circumstances, leading questions without compromising impartiality . Rather, he seems to equate “intervention” as of necessity resulting in a loss of impartiality: “If the plaintiff were to continue pro se, the court would probably be forced to intervene and, in effect, advocate on his behalf, possible prejudicing the defendant’s case .”23
One might be tempted to use this case as an example of the necessity for a categorical right to counsel in all such cases as the only means of assuring access to justice . One could argue that it demonstrates the untenable position into which even a seasoned, learned and empathetic judge is placed when faced with an unrepresented party . One could argue that it also demonstrates the hopeless situation in which it places the unrepresented litigant, since without counsel, he has no assistance in articulating his case . Indeed, one could argue that it is also a striking example of the “justice gap” that results from the lack of counsel since, absent counsel, there are no other options for assisting the unrepresented party . Who could resist such an argument in favor of a right to counsel?
But I believe that approach would have an unfortunate result in terms of equal access to justice . The right-to-counsel movement does, in fact, expose the limitations and harms of our adversarial judicial scheme, by highlighting its effect on the lives of unrepresented litigants in cases such as Floyd .24 However, the constitutional mandate underlying equal access to justice will not let us settle for such a Hobson’s choice, which would deny access to justice to millions of unrepresented civil litigants until some future time (if ever) when counsel might be provided for unrepresented parties .25 Thus, we must avoid giving credence to or support of judges who use the rhetoric of the right-to-counsel movement to deflect their own due process and equal protection responsibilities to assist unrepresented litigants in achieving equal access to justice . Such deflection is not a constitutionally viable or permissible option .
Such deflection of an adjudicator’s duty to assist the unrepresented litigant was recently rejected in a case in which I provided some assistance to former New York Supreme Court Justice Emily Jane Goodman .26 In that case, an administrative law judge (“ALJ”) failed to intervene to assist the unrepresented litigant primarily because a Guardian ad Litem (“GAL”) had been appointed . However, the appellate court, in reversing the administrative determination, noted that such an appointment did not relieve the ALJ of her constitutional duty to assist the litigant, especially since the GAL was not a “suitable representative,” i .e ., he was not capable of assisting the unrepresented litigant in developing the record . Thus, the appellate court held, “Under these circumstances, the hearing officer’s failure to develop the record during the brief hearing, and to make inquiry of the pro se petitioner, who exhibited confusion, deprived petitioner of a full and meaningful opportunity to be heard .”27
The United States Supreme Court has similarly held that due process requires that the court provide minimum safeguards for unrepresented litigants, including asking follow-up questions, to
23 Id. at 561 (emphasis added).
24 See, e.g., Russell Engler, Connecting Self-Representation to Civil Gideon: What Existing Data Reveal About when
Counsel is Most Needed, 37 fordham urb. l. J. 38 (2009).
25 See, e.g., Benjamin h. Barton and Stephanos Bibas, Triaging Appointed Counsel Funding and Pro Se Access to Justice, Knoxville College of Law, Research Paper #157 (Sept. 2011), available at http://ssrn.com/abstract=1919534; Richard Zorza, Turner v. Rogers: The Implications for Access to Justice Strategies, 95 JudicaTure 255 (2012).
26 See Russo v. New York City housing Authority, 128 A.D.3d 570 (2015). Former Justice Goodman represented the petitioner in the case challenging the housing Authority’s determination.
27 Id. at 571 (citations omitted).
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