A nail-biting cliff hanger. Unexpected, startling twists, and turns at every corner and in the middle of the block. Tension and anxiety build to near unbearable levels.
Hard to believe, but I assure you the preceding paragraph aptly describes a three-volume work entitled, "To Establish Justice for All, The Past and Future of Civil Legal Aid in the United States." This master oeuvre by retired Court of Appeal Justice Earl Johnson, Jr., and published by Praeger an Imprint of ABC-CLIO, LLC (2014), is filled with adventure, drama, philosophy, politics, psychology, and ethics. It is a gripping and dramatic history that reflects a critical aspect of our nation's continuing struggle to realize its guiding principle written with unabashed certainty in the preamble to the Constitution: "to … establish Justice."
And who better than Justice Johnson, the second director of the Office of Economic Opportunity (OEO) legal services program, a law professor and justice on the California Court of Appeal, and now a Visiting Scholar at the University of Southern California, to chronicle the history of legal aid to the poor in civil cases?
Johnson tells us in the prologue that his book is "10 percent memoir" and 90 percent "traditional history." But there is nothing traditional in his engaging and absorbing narrative. The manner in which he relates the history has an immediacy and drama that takes hold of the reader's shoulders and won't let go. This I attribute to Johnson's skill as a writer, his passion for the subject, and his involvement in many of the events he writes about. At the outset he acknowledges that his history is one with "a point of view." He relates that his book "tells the story behind our nation's tardy and as yet unfinished effort to make those people unable to afford lawyers equal to those that can - and thus for the first time establish justice for that segment of the population."
Lest one thinks the legislative battles over legal aid were played out against the backdrop of the partisan gridlock we see today, the great legislative and legal battles Johnson describes did not involve "the usual story of Democrats versus Republicans. Indeed the majority of the heroes in this book are Republicans, even though the federal program was started initially by Democrats, and it has been sustained by a bi-partisan coalition for most of its existence.
"Is it true or false that Donald Rumsfeld said, "A vigorous legal services program is, in my judgment, an essential element in this Nation's efforts to deal with problems of the poor"?
Is it true or false that Richard Nixon said, "As lawyers our first responsibility is, of course, to see that the legal profession provides adequate representation for all people in our society…. [T]here is no subject which is more important to the legal profession, that is more important to the nation, than … the realization of the ideal of equal justice under the law for all"?
If you chose "false" to either of the statements, you are wrong …and probably a fuzzy-brained, close-minded, knee-jerk liberal. Sorry, I was thinking of myself. If I had not read Johnson's book, I could well have chosen "false."
We meet an array of famous historical figures who played a part in either promoting or attacking legal aid. In addition to prominent members of the American Bar Association, they include Teddy Roosevelt, Charles Evans Hughes, Sargent Shriver, Lewis Powell, Richard Nixon, Donald Rumsfeld, Dick Cheney, Hillary Clinton, Walter Mondale, Newt Gingrich, Philip Gramm, and Ronald Reagan. Included in the cast of characters are a number of well-known Californians who played a significant role in legal services for the poor. Former California Supreme Court Justice Cruz Reynoso, leading appellate attorney Jerome Falk, current Court of Appeal Justices Stuart Pollak and Laurie Zelon, and Ninth Circuit Court of Appeal Justice Richard Paez.
Johnson's history begins with what he calls "the Charitable Era," 1876 through 1964, when mostly private donors provided legal aid on a limited basis. Johnson takes us through the War on Poverty, the creation of the OEO, and ultimately the Independent Legal Services Corporation (LSC). The legal and legislative battles to preserve and defend the corporation serve as a primer on the grit, sweat and horse trading that make legislation possible in a democracy. It brings home the adage that laws are like sausages — it is best not to see them being made.
We are taken behind the scenes and made privy to the strategies employed in court battles that produced important cases like Brown v. Legal Foundation of Washington, 538 U.S. 216 (2003), that found the use of IOLTA (Interest on Lawyers' Trust Accounts) to fund legal aid programs is constitutional. The majority opinion written by Justice John Paul Stevens held that the state's use of IOLTA to pay for legal services provided to the needy qualified as a public use so that the state could exercise its authority to confiscate private property under the just compensation clause.
Johnson relates how the IOLTA program began in England and was employed in Australia and Canada. It came to the U.S. by sheer luck. A barrister from Canada, and the chief justice of the Florida Supreme Court, both of whom had been young lawyers working in the same law firm, met for a glass of wine. The question, "So what's new in British Columbia?" led to the creation of IOLTA programs in the U.S. The program instituted in California mandated, not merely encouraged, lawyers to deposit trust funds in IOLTA to be used for legal services for the poor.
A law professor's study during the seven-year period 1967 through 1974 found that 7 percent of the cases heard by the U.S. Supreme Court were argued by legal services lawyers. The lawyers had a 62 percent victory rate. Prior to 1967, poor people in civil cases had been shut out of the legal system. And strange as it may seem, most of the victories happened after Warren Burger replaced Earl Warren as the chief justice and after several Nixon appointees joined the court. There were also scores of victories in the appellate courts. This belies the myth that legal services lawyers were pursuing a left-wing radical agenda.
We read a suspenseful narrative about the great battle fought by Gov. Ronald Reagan to defund the CRLA (California Rural Legal Assistance) in California, a battle that involved a host of participants and put the Nixon administration in an uncomfortable position opposing Reagan. We are told about an interesting meeting between the author Johnson and Dick Cheney at Johnson's cabin in Big Bear. We see the victories and defeats since the inception of the LSC.
The blows suffered by LSC funding and restrictions on its powers during the Gingrich "Contract with America" years have not defeated legal services for the poor, but have been a major setback. Abortion cases, class actions, and legislative advocacy may no longer be pursued, dashing the promise of helping hundreds if not thousands of people in a single class action or through the promotion of a legislative act. But many non LSC-funded organizations are taking up some of the slack.
Johnson points out the nation's poor still receive little access to justice. The bottom 20 percent of the population receive 3.4 percent of the nation's income, but only a half percent of its legal resources.
As Bill Moyers recently argued in a speech at the Brennan Center for Justice, "America's social contract has to cover everyone, not just the wealthy." Today this topic is at the forefront of political discussion. The struggle continues.
Johnson's elegantly written book ends with a plea and a hope for a movement that expands beyond the legal profession. "[I]f the United States is ever to 'establish justice' as promised in the Constitution's preamble, to make 'justice for all' a reality in this country not just a motto to mouth when reciting the Pledge of Allegiance, and to provide the nation's lower income population true 'due process' and 'equal protection of the law,' the right to equal justice and a lawyer when needed must become a legal guarantee. Only then and in that way can justice be established for all and thus become, as it should be, an inherent right of citizenship."