A Modest Proposal: Can We Settle For Less?
Theresa L. F. Levings
Badger & Levings, L.C.
Kansas City
The challenge is put squarely to us:
Rule 4: Rules of Professional Conduct
Preamble: A Lawyer's Responsibilities
. . . As a public citizen, a lawyer should seek improvement of the law, the administration of justice and quality of legal service rendered by the legal profession. . . . A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance, and should therefore devote professional time and civic influence in their behalf. A lawyer should aid the legal profession in pursuing these objectives. . . .
Your Missouri Bar is engaged in meeting this challenge right now.
In Missouri's General Assembly, HB 1621 and SB 1194 propose a way to provide improved access to justice for our state's poor. In recent years the State of Missouri, through general revenue and through a small share of the Tort Victims' Compensation Fund, has contributed $1.55 million to the total budget for all Legal Services programs in the state. Using all funds available, Legal Services and judicare lawyers in the state have been able to meet the civil legal needs of one in five poor Missourians. Now, with the budget crisis in Jefferson City and the exhaustion of the share of funds from the Tort Victims' Compensation Fund, a $500,000 shortfall of state funds for Legal Services is expected in FY 2003, and in FY 2004 Legal Services' best hope is for $50,000 in state general revenue funds – a reduction of $1.5 million.
While the state budget problems threaten serious cuts in a wide array of essential services, for Missouri's poor in need of legal services the budget problems mean cuts in a program that is currently meeting only 20 percent of the need.
For The Missouri Bar, Maurice Graham of St. Louis led a group of 35 lawyers, judges and legislators in identifying solutions to the immediate budget needs and to the long-term problem of unequal access to justice for 80 percent of poor Missourians in need of legal help.
HB 1621 and SB 1194 are a big part of the solution.1 They propose a surcharge on filing fees in circuit court and associate circuit court of $20 and $10, respectively. The funds generated by these surcharges would result in meeting 40 percent of the need, up from the current 20 percent. This would be a wonderful step forward.
Filing fees in Missouri vary from circuit to circuit, ranging from $85 to $150 for circuit court filings and $30 to $65 for associate circuit filings. Missouri's average filing fee for circuit court is $116 and $53 for associate circuit court.2 Those averages place Missouri behind 30 other states in terms of the filing fees for general jurisdiction courts and 16th out of 20 for limited jurisdiction courts. The proposed increases would not significantly alter these rankings.
At least 22 other states use filing fee surcharges to help fund legal services for the poor. These states appear to have a single surcharge for all cases, rather than different amounts for limited and general jurisdiction courts, as proposed by The Missouri Bar. Among other states, the highest surcharge in place is $28 in Oregon, and 12 other states report surcharges from $10 to $25. Some states receive a percentage of a global fund rather than a set dollar amount per filing.
The most important question addressed by The Missouri Bar's committee was whether an increase in filing fees would have the unintended consequence of preventing some people from having access to the courts because they could not pay the increased fee. A few judges, lawyers and legislators continue to be concerned that the increase will limit access. But the best evidence available is to the contrary. The committee looked at Missouri's own experience in the last 10 years when filing fees rose, surveyed the other 49 states for their experience after they increased filing fees and examined the results in the City of St. Louis since 1993, when filing fees were increased $34 to pay for courthouse renovations. In each instance, no evidence could be found that access to the courts had been limited. In fact, filings increased in Missouri by 12 percent over the last 10 years. In other states, no adverse impact on access was noted regardless of whether the increase in fees was $10, $20 or higher. In St. Louis, general civil case filings have risen 40 percent in the last decade.
The bar's committee tried to find other viable options for funding legal services for the poor. It couldn't. The bar has invited suggestions on how to replace the $1.5 million in current funding that is going to disappear and on how to generate more funding so that Missouri could meet at least 40 percent of the need rather than 20 percent. No one has come forward with any idea on how to provide a stable and more adequate source of funding.
In the last three years, 45,367 poor Missourians needed help to secure heat, hot water, electricity or working plumbing from their landlords.
In the last three years, 32,217 poor Missourians needed help with disputes over child custody, guardianship or visitation.
In the last three years, 53,915 poor Missourians needed help because they were victims of stalking or harassment threatening their personal safety.
In the last three years, 55,320 poor Missourians needed help securing an Individual Education Plan or special education services for children living with them.
These poor Missourians are our neighbors, and they qualify for legal services because they make $20,300 or less for a family of four. Under federal guidelines, individuals can qualify for Legal Services if they are at or below 125 percent of poverty, or $25,375 income for a family of four.
Of course, qualifying for Legal Services and receiving Legal Services are two different things.
Last year about 17,500 poor Missourians actually received free legal help from Legal Services, and it is estimated that about 30,000 poor Missourians (the clients, their children or others related to them) actually received a benefit from those services. Missouri's lawyers also donated thousands of hours helping poor Missourians whom Legal Services could not reach because of limited staff and other resources.3
It's rough going this session at our State Capitol. Lots of needs, little money. Missouri's lawyers have offered a modest proposal to improve the administration of justice and to assist the poor who cannot afford legal representation. We aren't even asking for half a loaf.
Please use your professional time and civic influence in behalf of these poor Missourians (see the form on the next page). Please aid The Missouri Bar in pursuing the objective of equal access to justice. I've asked you before on a different topic. I am asking again on this topic: What are you willing to do to help?
Endnotes
1 We thank the sponsors of these bills: Representatives Robert Clayton, Mark Richardson, Russ Carnahan, Robert Hilgemann and Senator David Klarich. All are attorneys, with the exception of Representative Hilgemann. We also thank Representative Ralph Monaco for his special assistance and guidance.
2 In some circuits, a slightly higher filing fee is assessed on domestic cases.
3 Based on voluntary reports for the year 2001, the value of pro bono services donated by Missouri lawyers, if computed at $100 an hour, exceeded $15.2 million.
JOURNAL OF THE MISSOURI BAR
Volume 58 - No. 2 - March-April 2002