Article by Melody K. Fuller that appeared in the Daily Camera on August 10, 2016
The Daily Camera’s recent editorial praising the reversal of a Boulder County Court’s decision allowing the eviction of a mobile home park tenant fails to address the most pressing problem within our civil justice system: the lack of lawyers to help the unrepresented make the legal arguments that courts should consider.
Most people simply cannot afford to hire a lawyer and, like the Camera’s editor, do not understand the complexities of the law and procedures that make legal representation critically important. The Boulder County justice system is better than many in preventing the use of the courts by the “rich and powerful” to exploit “the poor and vulnerable,” based on my experience representing low-income and disabled people. But despite our high quality bench, legal advocacy for individuals helps not only the litigants themselves but judges to understand and implement the statutes, case law and legal procedures that control the judicial decision-making process.
There is no constitutional right to a lawyer in civil cases; the right to legal representation that protects indigent defendants facing criminal charges applies only to individuals threatened with incarceration. Legal aid “societies” and other legal advocacy organizations exist due to the enormous obstacles to justice faced by anyone unable to afford a lawyer to defend against an eviction, or seek a protection order to prevent domestic abuse, or to challenge the denial of public assistance such as food stamps or Medicaid.
The downside of “a nation of laws, not men” to determine legal outcomes is a system based on competing principles and interests employing hard to follow procedures that often result in differing opinions all the way up to the U.S. Supreme Court. And even the “finality” of a Supreme Court decision may not endure the tests of time and cultural changes, as we all have seen during our own lifetimes.
Lawyers play a key role at all levels of our justice system in ensuring that the rich and powerful do not exploit the poor and vulnerable.
The justice system needs our help with resources to promote advocacy and balanced court orders. Charitable human services and federal and local government funding for Boulder County Legal Services and other legal aid programs for the poor is a drop in the bucket. Local lawyers contribute thousands of “pro bono” hours each year to help BCLS provide low-income residents with legal advice and representation. But only a fraction of those in need receive the services necessary to present their case in a way that harnesses the legal protections to which they are entitled.
The Camera editorial implies that the county court ruling allowing an eviction for overdue water costs despite the Mobile Home Park Act’s provisions forbidding evictions for unpaid utilities resulted from a hurried decision that ignored the role courts play in “defending the rights of the voiceless and powerless.”
I agree with the premise that “asymmetry of resources should not determine outcomes” but the imbalance largely is based on the lack of affordable lawyers to present the facts and legal analysis to judges who do not have the resources to effectively assess and consider the legal issues. The Mobile Home Park Act is a convoluted and confusing set of poorly written and designed statutes that even experienced judges, who want to be fair, find hard to understand and implement. Without exception, the Boulder County and District Court judges applaud the representation that legal aid and pro bono lawyers provide for low-income residents because they know that having advocates on all sides helps courts make better decisions.
Judges are not allowed to explain their decisions and can provide “clarification” of their rulings only in very limited circumstances. It is unfair to accuse a judge or court staff of “circling the wagons” for following the procedural and ethical rules meant to protect the public from a politicized bench that responds to pressure from an all too often ignorant press.
Rather than criticizing an individual judge for a decision made without the benefit of legal advocacy on both sides, the press should support efforts to enable all litigants’ access to legal representation.
Melody Fuller is a former Boulder County Bar Association president and former managing attorney for Boulder County Legal Services.