Texas Justices: 'Court Should Lead The Way'
In a March 31st interview with Texas Chief Justice Wallace B. Jefferson and Justice Harriet O’Neill, the Supreme Court of Texas’ legal services liaison, Equal Justice Magazine Editor Eric Kleiman asked the Justices about Texas’ rapid evolution as a leader in the movement to expand access to the civil justice system.

Equal Justice Magazine: Justice O’Neill, you were on the bench in 2000 when the Supreme Court held its first of two hearings on the state of legal services in Texas. Was that an awakening for the Justices as to the challenges the state’s legal services providers are facing?

Justice Harriet O’Neill: It’s important to emphasize that access to justice for the poor is really a societal problem; it’s not a legal problem. But lawyers can lead the way, and the Court should lead the way as well.

The reason for the first hearing was to build on what our predecessors had done and see if the Court could take a more intense leadership role. One of the problems that we heard in the initial hearing was that, while a lot of the programs worked very well, there was a synergy that wasn’t being tapped. So the Court started going on the road to hear argument in different areas. As we did that we would visit different legal aid constructs in the various courthouses and learn a lot of good ideas that we thought should be shared among the different providers. We also decided that providing some sort of umbrella organization like the Texas Access to Justice Commission could help coordinate these efforts.

EJM: Since that time, do you feel there has been a growing recognition that Texas is now a national leader on the issue of equal justice?

Chief Justice Wallace B. Jefferson: There’s been a commitment to access to justice for decades on the Supreme Court of Texas. I don’t go back that far, but one of the early Chief Justices was Jack Pope, who was very instrumental in forming the IOLTA program in Texas. So when you have that kind of leadership early on, and then invite the community and the bar to be part of it, you can’t go wrong.

EJM: What should the role of a state supreme court be, and more specifically, what should the role of a Chief Justice be in promoting access to justice?

Jefferson: The Court’s role should be an active one. After all, we’re in the business of administering justice. I can say this on behalf of a unanimous Court—which isn’t always possible here—that all of us are behind the concept of getting services to the people who can least afford them. In the end, that means protecting our Constitutional rights. So the Court can perform a leading role. We’ve got a pulpit, in a sense, to do this.

EJM: Right. Because in some states, it seems no single group really steps forward to take leadership, and access to justice sort of falls through the cracks. Do you feel it’s the judiciary’s particular responsibility to marshal resources and spark a statewide movement?

O’Neill: Yes, I do think Courts should lead in this regard. We implemented a strategic plan as a way to try to institutionalize support for legal services so that it doesn’t depend upon various commitment levels of judges as they come on and off the Court. My goal in pushing for the strategic plan was to get a “playbook” for future judges that is structured and operates more like a business plan, so support so won’t wax and wane.

Jefferson: I think judges are incredibly important symbols of access to justice. I don’t think it necessarily works for judges to strong-arm people. But if you have, as we do in Texas, lawyers willing to give of their time freely…if they want to do it and know that the judges are behind them and are supporting them, then they are much more likely to get involved at a high level. We’ve traveled around the state, and lawyers are answering the call. I think that’s in large measure due to the support of judges throughout the state.

EJM: Some have said that trial judges have a particularly difficult task in bringing about equal justice, having to both remain impartial while still trying to promote the idea of unrepresented parties having a fair chance. How can a judge use his office to ensure justice for all without stepping over the line?

Jefferson: Judges all have to concern themselves with that. There are codes of judicial conduct that regulate what judges can or can’t do in terms of using their office for other purposes. That being said, I don’t think it is inconsistent with any of our canons or ethics to encourage the participation of lawyers and even other judges to help out those in our society that most need legal help but can least afford it.

EJM: Is this an issue that has been raised at the Conference of Chief Justices? What are the Chiefs doing on the access-to-justice front?

Jefferson: I’m a brand-new Chief Justice and just attended my first conference. We didn’t have a special program on that, but we did talk about it. The Chiefs meet in regional meetings and over dinner, and I had many questions asked about how we go about providing services in Texas. So I know it’s on many of the individual Chief Justices’ minds.

EJM: Can you talk a little about the Court’s relationship with the Texas legislature on this issue? Is there an ongoing education of the legislature in terms of the resource crisis that legal services programs face? There seems to be an understanding that legal services work is important, but sometimes funding doesn’t follow.

O’Neill: The legislature has been very helpful. When we’ve gone to them to ask for things that we’ve needed, they’ve been very open. It’s a constant challenge to keep the channels of communication open. I’m very involved in speaking with members of the legislature, and I come to Washington every year for Law Day to educate our lawmakers at the national level. They’re always pleased to see that legal aid organizations are of great value in their districts. I think they see [legal services] more as a resource, rather than a government-supported program so much. I think they see it as a real win-win situation.

EJM: Chief Justice Jefferson, you addressed the Texas legislature recently on the State of the Judiciary and dedicated a major section of your speech to access to justice. How was that received?

Jefferson: I think it was received well. I got positive comments from both senators and representatives. So I am very optimistic that we will continue a good relationship with the legislature. Now obviously, and this is going on in other states, there are many demands on taxpayer money. The legislature is struggling with that right now in Texas. We’ve got questions of funding on school finance, on teachers, on judges; there are many people coming to the legislature for help. That being said, they understand the need, they appreciate this Court’s leadership, and we’ve been talking to them about the fact that we have many volunteer lawyers out there who have been giving their time freely as part of their public service. I think the legislature is going to be helpful in this session and in the near future.

EJM: Justice O’Neill, what have been your proudest achievements advocating for this cause?

O’Neill: When the Commission was begun, John Jones—who has been a leader in the El Paso legal community for a long time—worked very hard to create and shape a statewide approach. I would have to say that perhaps one of my greatest contributions to access to justice was in locating Jim Sales to take his place. Jim had served on the Commission for quite a while. He is a partner at Fulbright & Jaworski in Houston, and he has hit the ground running. He has brought a level of energy and commitment that has just been terrific.

One other thing that we’re quite proud of is the task force the Supreme Court appointed to look into domestic violence issues. Specifically, with Texas being so big, and with so many different judges in different areas, we found that courts were treating protective orders for victims of domestic violence in a variety of different ways. The task force was formed to study the issue and determine if we could come up with a more uniform and user-friendly procedure. Volunteer lawyers, family lawyers, professors, and experts from across the state came together and assembled a series of forms that will allow those who can’t afford a lawyer to represent themselves. It really is a tremendous accomplishment. Not only will pro se litigants be able to protect themselves, but lawyers at legal aid can use these forms. Applicants can go to our website to access the forms and get help filling them out. Hopefully, lawyers in private practice who might shy away from representing a domestic violence victim because of fears of not knowing how to do it may be more willing to help.

EJM: In closing, I would like to ask a question about politics. Texas is a Republican-dominated state, even though the conventional wisdom of the past may have been that support for legal services is more likely found among Democrats. Yet Texas seems to refute that idea. How has your state been so successful in turning access to justice into a bipartisan issue?

O’Neill: One of the keys has been finding common ground. Legal aid has evolved, as well. It used to be there were no restrictions or relatively slight restrictions in how funding could be used. I think there was a feeling that some of it was used inappropriately, perhaps to fund suits that were more appropriately handled by the private bar. I do think that with the finding of common ground—what everyone can agree that funds should go to—we’ve found a much broader base of support.