Begin With Koch-Holder Agreeing
It takes a real national crisis to unite the Koch brothers with U.S. Attorney General Eric Holder, but justice rationing has managed to just that as the conservative-backing Koch Industries is closing out 2014 by drawing praise from the A.G. because of a "major grant" to the National Association of Criminal Defense Lawyers.
"There's a justice gap. And to hear that the Koch brothers would be contributing money in that way is something that I think should be applauded," Holder said in a Politico report.
The attorney general even made indirect reference to the "Civil Gideon" movement, which seeks to provide civil representation, in some cases like eviction or child custody, that would mirror the well-known right to an attorney in criminal cases. Politico reported that Holder, in an interview with The Marshall Project, a nonprofit news organization that focuses on criminal justice issues, "... referred to a famous Supreme Court case that afforded Americans the right to seek counsel even if he or she cannot afford it. "It's about 51 years or so after Gideon [v. Wainwright] and there are way too many people on the civil side, as well as the criminal side, who don't have their legal needs met."
The Koch donation, actually announced back in October, and the Holder praise illustrate that the "justice gap" has become a true crisis, but we would submit that 2015 will see the civil side of the equation become more understood - if only because things will get worse before they get better.
So, based on a survey of National Courts Monitor contributors and our best-guess analysis, the topic of "immigration courts" is a runaway winner for our "Tipping Points" civil justice issue for 2015, but we find some space for other concerns.
Here's our top five emerging civil justice issues for 2015:
1. Immigration Courts
You almost hate to call them "courts," since the judges are actually employees of the Justice Department, not independent jurists. Even the judges' union is calling for reform, a rare event since their employment contracts bar criticizing the Department.
In the meantime, the "border kids" crisis, where Central American children showed up at our border seeking refuge, exposed an overwhelmed system with hundreds of thousands of pending cases and fairly routine decisions taking years, leaving families in limbo and creating a chance to "game" the immigration process.
And it keeps getting worse. The National Law Journal reported in November that "... by the end of October, there were 421,972 cases pending in the nation's 58 immigration courts--an increase of more than 22 percent from around the same time period in 2013, according to data released this week by the Transactional Records Access Clearinghouse. The number of new removal orders filed against undocumented immigrants grew by 12 percent, from 198,723 in fiscal year 2013 to 222,956 this year."
These cases are a core argument for "Civil Gideon" reform, because we should not ask children to face government lawyers in front of a government judge. The record shows that most of those with lawyers get to stay and most of those without lawyers have to leave.
USA Today cites a report from the nonpartisan Transactional Records Access Clearinghouse at Syracuse University in reporting that, "... since 2005, nearly 50% of the children who had lawyers when they faced an immigration judge were allowed to stay in the United States. In contrast, only 10% of children who went to court without an attorney were permitted to stay."
In general, "immigration" will be a hot topic for 2015, especially in light of the 2016 presidential race. But the border kids crisis will assure that "we need a fence" will share the spotlight with "we need a bench."
2. Civil Forfeiture
Oddly, this is another area where the Koch brothers and the NACDL have worked together over the past decade or so. But it is on the 2015 map for one reason, and that reason is HBO's John Oliver, who did a scathing LOL treatment on the topic.
If you have not seen it, give yourself a New Year's treat and watch the video.
3. Criminalization of Civil Infractions
It's not a coincidence that civic protests in Ferguson, Mo., included demands for reforming traffic citations. That's because the low-level tickets result in unpaid fines and missed court dates that lead to warrants - the evolution of civil to criminal.
For example, in Texas, the Observer has reported on how "payday loan" companies set up check-holding policies to turn cops into bill collectors. In one example, a $500 loan ended up with a district attorney demanding that the borrower "... pay $1,020 within 10 days or potentially face felony theft charges that carry two to 20 years in jail and fines up to $10,000. In all, the district attorney demanded $1,250, including "district attorney fees" of $140 and merchant fees of $90."
4. Asbestos Reform
Granted, most of us would welcome anything that might diminish those "mesothelioma" ads that seem to be everywhere, but maybe you would feel differently if you knew that was a deadly cancer caused by breathing in asbestos fibers. Asbestos is still not banned in the United States and the litigation industry resulting from its use tops $10 billion a year - it's bigger than the NFL.
Every year brings "tort reform" battles over what's usually thought to be the nation's longest running corporate-tort lawsuit arena. This year will be different because of new pressures for transparency and harsh words from judges in cases like those involving BASF and Garlock Sealing. The judges are ordering new levels of transparency, according to the Wall Street Journal, which has the capacity to re-open literally thousands of cases believed settled - in some cases, this means families recovering from losing loved ones will find themselves accused of perjury, just for following attorney instructions.
Combined with a new Republican majority in the U.S. Senate, we can expect nothing short of legal-community fireworks.
5. Civil Gideon
A common denominator in the issues above is that people with relatively limited resources are being pitted against interests with massive resources. And people with little or no experience in the legal system are being asked to battle people with massive experience, and many times government-backed efforts like the Justice Department.
An American Bar Association endorsement column got it right when it noted that "an indigent civil litigant cannot hope for a 'fair trial' when facing off alone in an adversarial proceeding against a landlord's attorney, or a bank, or a state's social services agency, or an abuser that brings the full force of intimidation into the courtroom.
From a 13-year-old asylum seeker in Texas to families facing eviction in the Bronx, people are facing life-changing court hearings where the difference is legal representation. Increasingly, the threat of financial ruin or possible criminal charges leaves America falling well short of the rule of law.
But the Tipping Point is approaching, and 2015 is shaping up as a good candidate - any year that begins with the Koch brothers and Eric Holder agreeing on reform has to offer hope of bridging the justice gap.