Steven I. Platt: Going out on a limb with government branches

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With all that is going on in our state and our nation, indeed the world, in the name of “access to justice,” it is appropriate to pause and reflect on what that should mean whether it seems that we have time to do so or not.

In Maryland, we have DeWolfe v. Richmond and its legislative progeny addressing the right to counsel at a criminal defendant’s first appearance before a judicial officer — District Court commissioner or judge — who can deprive the accused of his liberty. That subject is currently consuming a huge block of time and energy in all three branches of our state government.

A lot of that time is being devoted to calculating the costs in taxpayer dollars of various models for implementing that constitutional right, which was declared without a cost-benefit analysis preceding or accompanying it. Add to that the potential cost in time and money of the Private Bar and you have at least an informed estimate of the cost of implementing this heretofore undeclared constitutional right.

Maryland is also looking at what has been termed “Civil Gideon” after the famous Supreme Court case of Gideon v. Wainwright, which established the federal constitutional right to counsel of any person accused of a crime and whose liberty is at risk. “Civil Gideon” in Maryland would establish by either legislation or court opinion a right to counsel in some or all civil cases. Hopefully, that will be considered only after a recognition of the costs of doing so and consideration of the way to pay for those costs. The need to do so at least contemporaneously if not in advance is the lesson to be learned from the current machinations, including back-and-forth finger-pointing among all three branches of government, particularly during the General Assembly session.

The reason that lesson is so important is that the historical context for our state’s focus on “access to justice” is a dramatic downturn in the level of confidence people have in government and its leaders.

The impact of this lack of trust and confidence in government on the ability to provide greater “access to justice” is direct. If the judiciary’s independence is not sufficiently respected and funded accordingly by the executive and legislative branches, then even the existing level of access to justice will not be maintained. Conversely, if the judiciary does not understand and respect the role of the more political branches of government to restrain spending to a level that is acceptable to an electorate that is economically and politically diverse as well as a sometimes irrational, then the judiciary will lose the ability to have confidence that the rights and responsibilities they adjudicate will be carried out.

In turn, the people will lose what’s left of their expectation, until recently unshakeable, that their rights will be protected by institutions of government that work and leaders who are both trustworthy and competent.

What’s going on in Maryland at the moment is illustrative. A majority of the judges then sitting in the highest court in the state articulated the state constitutional right to have counsel for persons accused of a crime whose liberty is at risk at his or her first appearance before a judicial officer. The court did so without any public consideration or explanation of the cost. The elected and appointed leaders of the executive and legislative branches then predictably reacted with a combination of fiscal-based shock, chagrin and, in some cases, anger at what they perceived as a ruling, unique among the states, that extended a right to a politically unpopular class of people that could cost up to $35 million. Elected representatives naturally resisted coming up with that amount of money to extend a right they hadn’t known about or thought about until last fall, particularly in an election year.

The process that has unfolded since has not been orderly or pretty. It has consisted of speeches, ad hoc “working groups” and task forces producing legislation that ranges from a “So There!” message to serious attempts to address the immediate and long-term issue of how to implement with the fiscal resources available the newly declared/expanded right to counsel.

The process is not over and will not end when the Maryland General Assembly bids “Sine Die.” It will carry on in the conference rooms and courtrooms of the trial and appellate courts in this state, in the Rules Committee and in the conference rooms of the legislative and executive branches of government before and after the primary election this summer and the general election in the fall. Hopefully, those who remain or emerge in the leadership of all three branches of government will recognize the continuing validity and wisdom of what Plato thought would be the greatest challenge to sustaining a democracy — that citizens would “live from day to day, indulging the pleasure of the moment.”

In order to avoid that, we should expect that the leaders of all three branches pay constant attention to what the editors of a special essay in The Economist magazine titled “What’s Gone Wrong with Democracy” refer to as “the architecture of our political system.” They should pay attention to these institutions of government with enough insight to grasp the effects of globalization, the digital revolution and other developing technologies on both the reality and potential increased access to justice in both our civil and criminal justice systems at a cost we can afford. That of necessity will require an organized critical examination of some of our most cherished, but now outdated governmental institutions and practices. It can’t start soon enough.

Steven I. Platt, a retired associate judge on the Prince George’s County Circuit Court, writes a regular column for The Daily Record. He can be reached at [email protected].