The Fundamental Right of Meaningful
Access to Justice
New Attacks on Rights to Access Justice
The jurisprudence of the Nineteenth Century, still remembered its Common Law roots, and its constitutional precepts.
The addition of new states, adopting constitutions, making explicit the fundamental right of access to the justice system,
and protection of the laws, reaffirmed this jurisprudence. But there were growing claims of competing rights.
Business and commerce growth was rampant. Corporations were formed. Railroads and mining secured special
privileges, and burgeoning capitalism sought to secure government protection in their accumulation of power and
wealth. However, Justice Fields had clearly enunciated in the Slaughter-house Cases, the settled law with respect
to claims of corporate rights. Corporations had claimed that they were entitled to the privileges and immunities of
citizens in the states. But the law was that, Corporations were not citizens within the meaning of this clause.
The term "citizens" applied only to natural persons, members of the body politic, owing allegiance to the state, not
to artificial persons created by the Legislature and possessing only the attributes which the legislature had prescribed.
Where contracts or rights of property were to be enforced by or against a corporation, the courts of the United States
would, for the purpose of maintaining jurisdiction, consider the corporation as representing citizens of the state under
the laws of which it was created, and to this extent would treat the corporation as a citizen, extending the judicial
power of the United States to controversies between citizens of different states.
It had never been held in any case either in the state or federal courts that a corporation was a citizen within the
meaning of the clause in question, entitling the citizens of each state to the privileges and immunities of citizens in
the several states. . . . A corporation being a grant of special privileges to the incorporators, had no legal existence
beyond the limits of the sovereignty where created, and the recognition of its existence by other states, and the
enforcement of its contracts depended purely upon the assent of those states, which could be granted upon such
terms and conditions as those states might think proper to impose.
In 1905, in Lochner v. New York, 198 U.S. 45, the Supreme Court in a 5-to-4 decision, held that New York law relating
to the health of bakery workers, and providing for a 10-hour day and 60-hour week, was unconstitutional on the
grounds that the liberty of contract guaranteed by the Fourteenth Amendment, protected the bakery industry as
against the health and safety of the workers. In an eloquent dissent, Justice Holmes, in memorable language, stated:
The Fourteenth Amendment does not enact Mr. Herbert Spencer's social statics. . . . A constitution is not intended to
embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of
laissez faire. It is made for people of fundamentally different views, and the accident of our finding certain opinions
natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether
statutes embodying them conflict with the constitution of the United States. General propositions do not decide
concrete cases. The decisions will depend on a judgment or intuition more subtle than any articulate major premise.
But I think that the proposition just stated, if it is accepted, will carry us far toward the end.
Yet, two years later, in Chambers v. Baltimore & Ohio Railroad, 207 U.S. 143 (1907), the Supreme Court in a
wrongful death case of a railroad locomotive engineer brought by his widow, led to a reversal of a favorable verdict
on the grounds that a statute of Ohio where the case had been brought required that the plaintiff be a citizen of Ohio.
Mrs. Chambers was a citizen of Pennsylvania. She claimed that Article 4, Section 2, ¶ 1 of the
Constitution of the United States which provided that, "The citizens of each state shall be entitled to all privileges
and immunities of citizens in the several states" had been violated. The majority affirmed the judgment below, with
a strong dissent by Justice Harlan. All Supreme Court justices agreed, however, that,
The right to sue and defend in the courts is the alternative of force. In an organized society it is the right conservative
of all other rights, and lies at the foundation of orderly government. It is one of the highest and most essential privileges
of citizenship, and must be allowed by each state to the citizens of all other states to the precise extent that it is
allowed to its own citizens. Equality of treatment in this respect is not left to depend upon comity between the
states, but is granted and protected by the federal constitution.
Thus, even a badly split Court unanimously agreed that access to justice was a fundamental right, and the earlier
United States Supreme Court cases enunciating this principle were again repeated. Justice Harlan's view for the
minority was that jurisdictional standing decisions were also capable of denying fundamental rights. He saw the
statute of Ohio as applied as being a denial, in every essential sense, of a fundamental privilege belonging to him
under the Constitution in virtue of his being a citizen of one of the states of the union -- the right to sue and defend
in the courts of justice, which right this Court concedes to be 'one of the highest and most essential privileges
of citizenship.'
Historically, we recognize that in the Slaughter-house Cases, Lochner, and Chambers there was a transient
triumph of the economic partisanship of a majority of our highest Court over the eloquent, time-honored dissents
of our greatest judges. But it is noteworthy that in none of the cases is there a denial of the fundamental nature
of the right to access the justice system.
ALSO
In United Mine Workers v. Illinois State Bar Ass'n, 389 U.S. 217( 1967) the
Supreme Court held:
“[HN2] - The rights to assemble peaceably and to petition for a redress of grievances are among the
most precious of the liberties safeguarded by the Bill of Rights. These rights, moreover, are intimately
connected, both in origin and in purpose, with the other First Amendment rights of free speech and
free press. All these, though not identical, are inseparable. The First Amendment would, however,
be a hollow promise if it left government free to destroy or erode its guarantees by indirect restraints
so long as no law is passed that prohibits free speech, press, petition, or assembly as such. Laws that
actually affect the exercise of these vital rights cannot be sustained merely because they were enacted
for the purpose of dealing with some evil within the State's legislative competence, or even because
the laws do in fact provide a helpful means of dealing with such an evil.”
EQUAL PROTECTION
(Rich and Poor)
The equal protection concept is "not limited to criminal prosecutions" and its "protections extend
"In my view, the decision in Boddie v. Connecticut can safely rest on only one crucial foundation that the
civil courts of the United States and each of the States belong to the people of this country and that no person can be denied access to those courts, either for a trial or an appeal, because he cannot pay a fee, finance a
bond, risk a penalty, or afford to hire an attorney." Meltzer v. C. Buck LeCraw & Co., 402 U.S. 954,
955-956 (1971) (dissent from denial of certiorari).” Cruz v. Hauck, 404 U.S. 59, ( 1971)
Supreme Court decisions have made clear that denial of full, fair, equal, effective and meaningful access to the judicial processes needed to vindicate legal rights, when based upon financial situation
of the party, is repugnant to the Constitution. The foundation cases in the relevant line
of decisions are Griffin v. Illinois, 351 U.S. 12; Boddie v. Connecticut, 401 U.S. 371,374
“ I share the view of Justice Black, however, that: "[T]he decision in Boddie v. Connecticut can safely rest on only
one crucial foundation - that the civil courts of the United States and each of the States belong to the people of this
country and that no person can be denied access to those courts, either for a trial or an appeal, because he cannot
pay a fee, finance a bond, risk a penalty, or afford to hire an attorney. . . . . . . . "
The crucial foundation on which Boddie rests also forbids denial of an indigent's right of appeal in
civil cases merely because he is too poor to pay appeal costs. Once the right of unhampered acces to
the judicial process has been established, that right is diluted unless the indigent litigant has an opportunity
to assert and obtain review of the errors committed at trial.
Meltzer v. LeCraw & Co. 402 U.S, 954,955-956,958 (opinion of Black, J)
FURTHERMORE
Our Constitution mandates that "justice in all cases shall be administered openly, and without
unnecessary delay." Constitution, Article 1, Section 10.
That justice which is to be administered openly is not an abstract theory of constitutional law, but rather is the
bedrock foundation upon which rests all the people's rights and obligations. In the course of administering justice,
the courts protect those rights and enforce these obligations. Indeed, the very first enactment of our state
constitution is the declaration that governments are established to protect and maintain individual rights.
Constitution, Article 1. Constitution, Article 1, Sections 1-31 catalog those fundamental rights of our citizens.
The drafters of our constitution placed such great importance upon rights that they provided: "A frequent
recurrence to fundamental principles is essential to the security of individual right and the perpetuity of free
government." Constitutional Article 1, Section 32.
The Court then reviewed its cases in the field, concluding that the right of access to the courts "must be accorded
a high priority."
Recent decisions in Washington State remind us that in Mills v. Orcas Power & Light Co., 56 Wn.2d 807 (19__),
the Court had recognized that where there has been an injury, there is a remedy. See also Justice Talmadge's
dissenting opinion in Griffin v. Eller, decided September 5, 1996, citing Chief Justice Marshall in
Marbury v. Madison, recognizing the fundamental right of every individual to claim the protection of the laws.
See also Justice Sanders' dissenting opinion in State v. Rivers, 129 Wn.2d __, decided August 8, 1996, relying
on fundamental constitutional principles, Article 1, Section 32, and natural law principles in determining
the meaning of cruel punishment.
The Substantive Right of Access to Courts
In recent times, numbers of courts have based their opinions on the premise that right of access to the courts is
basic to our system of government and is one of the fundamental rights protected by the Constitution, relying on
Article 4, Section 2, Clause 1, and the First, Fifth and Fourteenth Amendments. They hold that this right must be
adequate, effective and meaningful, and urge that interference with right of access to the courts gives rise to
claims for relief under the civil rights statutes. In doing so, they collect and rely upon dozens of
United States Supreme Court and lower federal court cases, many of them decided in recent years.
See, for example, Ryland v. Shapiro, 708 F.2d 967 (5th Cir. 1983),
In this opinion by Judge Beckwith, involving human radiation experimentation and 30-40 year old collusive,
fraudulent concealment of non consensual experimentation, the Court applies the substantive right of access
to the courts, which it characterizes as "basic to our system of government, and one of the fundamental
rights protected by the Constitution." In addition, Judge Beckwith invokes the important precedent of the
Nuremberg Code, establishing the human rights violation involved in unconsented human experimentation
and the violation of the right of bodily integrity. As the Court states, "the Nuremberg Code is part of the
law of humanity. It may be applied in both civil and criminal cases by the federal courts in the United States.
" Judge Beckwith's decision and the cases she cited demonstrate that the violation of international human
rights treaties and convention, as well as customary international human rights law, are constitutionally
adopted into the framework of American law.
Just as from the beginning of our judicial experience, our highest courts and our wisest jurists understood and
applied Common Law, and the jurisprudential values of Western civilization, in more recent times there has been
a recognition that fundamental constitutional principles are solidified and reinforced by United States adherence
to treaties and conventions to which we subscribe. See U.S. Constitution, Article 3, Section 2, and Article 6,
which extends the judicial power to such treaties and makes such treaties the "supreme law of the land."
Foremost among such incorporated documents is the Universal Declaration of Human Rights whose provisions include:
Article 6:
Everyone has the right to recognition everywhere as a person before the law.
Article 7:
All are equal before the law and are entitled without any discrimination to equal protection of the law.
Article 8:
Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental
rights granted him by the constitution or by law.
Article 10:
Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the
determination of his rights and obligations, and of any criminal charge against him.
Article 21:
(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
(2) Everyone has the right of equal access to public service in his country.
Clearly, it is not only from Magna Carta, Common Law, the United States Constitution, state constitutions, and t
he Natural Law that access to justice and rule of law is seen as fundamental -- it is also universally recognized.
But it is essentially left to the courts to implement and make real these precious rights.
Conclusion
A remarkable discussion by one of our greatest Supreme Court Justices, Benjamin N. Cardozo, in his book
The Nature of the Judicial Process (Yale University Press 1921), gives us insight as to the methods utilized by
judges in reaching their decisions. In a series of lectures, Cardozo discusses the method of philosophy, the
methods of history, tradition and sociology, the judge as a legislator, and adherence to precedent --
the subconscious element in the judicial process. The books is full of wisdom and insight, as applicable
today as it has been in the jurisprudential history of our society. Cardozo's summary of this masterful work
is condensed in a few words, as follows:
Our analysis of the judicial process comes then to this, and little more: Logic, and history, and custom, and utility,
and the accepted standards of right conduct, are the forces which singly or in combination shape the progress
of the law. Which of these forces shall dominate in any case must depend largely upon the comparative importance
or value of the social interests that will be thereby promoted or impaired. One of the most fundamental social
interests is that law shall be uniform and impartial. There must be nothing in its action that savors of prejudice or
favor or even arbitrary whim or fitfulness. Therefore in the main there shall be adherence to precedent. There
shall be symmetrical development, consistently with history or custom when history or custom has been the
motive force, or the chief one, in giving shape to existing rules, and with logic or philosophy when the motive
power has been theirs. But symmetrical development may be bought at too high a price. Uniformity ceases to
be good when it becomes uniformity of oppression. The social interests served by symmetry or certainty must
then be balanced against the social interests served by equity and fairness, or other elements of social welfare.
These may enjoin upon the judge the duty of drawing the line at another angle, of staking the path along new
courses, of marking a new point of departure from which others who come after him will set out upon their journey.
For Justice Cardozo, the greatest force of all was "the power of social justice." For him, "the final cause of law
is the welfare of society."
Just as for Justice Holmes, neither the Constitution nor the life of the law would permit the enshrinement of the
theoretical and often erroneous assumption of the economists. The myth of the market is much like the myth of
monarchy. Just as the divine right of kings reign "in law" for centuries, now is perceived as a manifest absurdity,
the divinity of laissez faire is legally, jurisprudentially, and constitutionally irrelevant and transient. The moral
excellence of economic competition is as "moral" as the survival of the fittest, and the social preference for the
nobility of war. To the extent that the law seeks the promotion of the social benefit of greed, it corrodes itself i
n the same way as it does when it ennobles war, state violence, and the divine right of kings.
In contrast is the universality of the values of compassion and altruism and the historic constancy of these
values through centuries, as contrasted with the transiencies of historic epics where the myths of monarchy
and market seemed to reign. Through recorded civilizations the issues of social philosophy have always been
concerned with the relationship of man to state (i.e., organized society). To those who have decried government:
from the Communists with their belief that government will wither away; to the anarchists, nihilists, and the
contemporary right-wing nihilists (with their hatred for health and economic regulations, public schools,
courts of justice, and the protection of hallowed individual rights, by the affirmative action of government
to protect those rights), we can only say that the tradition of the law is the inclusion of us all within its protection.
Meaningful Access to Justice is Now,
and Has Been, for Hundreds of Years,
the Most Fundamental of all Rights.
Our Mission and Our Passion
is to Make it Happen
for All Our Members!
