As RI’s Tsunami of Evictions Approaches, Tenants Need Legal Support: Guest MINDSETTER™ Schoos

Sunday, February 14, 2021

Guest MINDSETTER™ Geoffrey Schoos

 

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In the coming months, as we emerge from our pandemic nightmare, thousands of Rhode Islanders – often low-income Rhode Islanders – will be confronted with a variety of legal actions touching on evictions to debt collections. Many, in need of basic legal support, will be left to fend for themselves in a process they often find mystifying. 

The sad fact is that the existing legal services organizations are already overtaxed and there is no other mechanism in place to meet the needs of low-income Rhode Islanders. As some may know, for the past several years I have been a proponent of an Access To Justice Commission to determine which legal services would be necessary to serve the needs of underserved low-income Rhode Islanders, and how to actually do so. 

Several months ago I published my book, Access To Justice On The Outskirts Of Hope, in which I urge Rhode Island to follow the lead of most other states and form this Commission. So far, my admonitions have fallen on deaf ears. In furtherance of this argument, I’d like to address another topic about which I write in my book. I assert that low-income Rhode Islanders are entitled, under statute, to a court appointed attorney. I know this sounds outlandish but permit me to explain. And to do so, I’ll need to walk back through history all the way to England in the year 1495.

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In 1495, King Henry VII reigned. Perhaps more popularly remembered for fathering his more famous (infamous?) son, Henry VIII, Henry VII had a number of accomplishments to his credit. He successfully ended the War of the Roses, he solidified his rule, bringing peace to England, and he promoted a more vigorous Parliament. It is this last topic I wish to briefly discuss. At first blush, it doesn’t appear that Henry VII was an avid supporter of the legislature. History shows that under his predecessors, Parliament met more frequently, albeit for shorter sessions. Under Henry’s reign, the Parliaments met more sporadically but for longer sessions, yielding greater legislative output. 

The Parliament that convened in 1495 is considered one of the most productive and impactful Parliaments, not just of Henry’s time, but in comparison to those of his predecessors. In that year, Parliament enacted 11 Henry 7 c.12, Informa Pauperis. The genesis of this statute is explained in my book, and I invite you to read it. For my purposes, more important than what brought this statute about is what it said. This statute mandated that every person appearing in court whose total wealth fell below five pounds was to be considered informa pauperis and to be granted a waiver of court fees and be provided an appointed attorney. Under the statute, the appointed attorney would receive no fee, clearly not from the client who could not afford it, nor from the court. (This statute was revised four hundred years later with only minor adjustments.  The criterion for informa pauperis status was raised from five pounds to twenty-five pounds of wealth.) 

More than one hundred years after the enactment of 11 Henry 7 c.12, the English colonization of North America began. Over time, fealty to the crown and adherence to English law were imposed on the new colonies. Thus, 11 Henry 7 c.12 made its way to the New World. For about one hundred and sixty years, the English colonies adapted to and lived under English law, both statutory and common law. Save for a small amount of local control, the colonies had not developed a robust legal system of their own. 

When the colonies politically broke away from England, having little law locally developed, they initially adopted English law as their own. Rhode Island was no different. Rhode Island incorporated English common law into its General Laws, Specifically, R.I. Gen. Laws § 43-3-1 states:

In all cases in which provision is not made herein, the English statutes, introduced before the Declaration of Independence, which have continued to be practiced under as in force in this state, shall be deemed and taken as a part of the common law of this state and remain in force until otherwise specially provided.

This language survived several revisions of the General Law, the most recent in 1956. 

I understand some skepticism here. You may well ask that, if that’s the statute, why aren’t there appointed attorneys in our civil courts? You may even think I’m grasping at straws to dress my narrow point in respectful clothes. Well, if I’m grasping at straws, I’m in good company.

In 1972, the Rhode Island Supreme Court issued a judgment in Jones v. Aciz 109 R.I. 612, 623 on an eviction matter. In its travel from the Sixth District Court to the Supreme Court, some of the original parties left and were replaced, and the issues raised before the Court were varied and more complex than a typical eviction matter. For my purpose, it is the issue of appellate fees assessed by the district court that matters.
After citing other cases that held that a district court had an inherent power to waive fees, the Court cited to 11 Henry 7 c.12 as statutory authority incorporated into R.I. Gen. Laws § 43-3-1 as part of the common law supporting the district courts’ inherent power to waive fees. Any mention of attorney’s fees was ancillary to the specific issue of court fees. 

Jones has been cited 19 times in other cases, most addressing the issue of indigency and fee requirements, a few on other issues (e.g., mootness) raised in Jones. What seems vexing to me is why the appointment of attorneys for indigent parties hasn’t been specifically raised and addressed by the courts? Since all of 11 Henry 7 c.12 has been incorporated into the Rhode Island General Laws, then all of it must be actionable. That is unless a court or the legislature wants to sever the issue of appointed counsel from waiver fees for indigents?

I assert that every indigent Rhode Islander is entitled, under the provisions of R.I. Gen. Laws § 43-3-1, to appointed counsel. I know there are policy reasons why attorneys might not be eager to raise this issue. Lawyering is a business just like any other.  In order to keep operating, money has to flow in. As I’ve pointed out elsewhere, there is an aspirational rule in Rhode Island that attorneys provide 50 pro bono hours in support of indigents. Clearly that hasn’t happened, save for a few who do participate in the various Bar Association programs.

As for myself, I’m semi-retired, but those services I do provide are to those who can’t afford attorneys. And when I ran my legal services organization, I provided more than 50 uncompensated legal services per week, so I think I’ve met this aspirational requirement through most of this century. Add to that, if we’re going to have courts appoint attorneys, there needs to be some means to pay them. That would require the General Assembly to put fee compensation into the annual budget to support this effort. It doesn’t take a leap to see the political implications attendant to such a budget allocation.

On the other hand, as I discuss in my book, if we change the language for such allocations from “benefit” to “investment,” with the expectation of a return on that Investment, it might not only be acceptable but sound public policy. I’ve included several examples where money invested on legal services saves significant money elsewhere in a state budget. 

But this would require planning, something that’s often difficult in state government. Especially in these pandemic times, money is scarce with projections of a $500 million short fall already in this year’s budget. However, this pandemic will pass.  So what then? Do we revert to the way things were? If history is a guide, probably.

There is a tsunami of evictions on the horizon, the same underlying issue in Jones. This will likely cost courts significant money in waived fees, adding to their woes. In spite of the good hearts and meager legal resources available to indigent parties, there simply won’t be enough help to go around. Frankly, there isn’t enough help in “normal” times, and we passed “normal” a year ago.

Indigent civil litigants deserve more than this hodgepodge Rube Goldberg Blanche Dubois reliance on the kindness of strangers’ approach to meeting their legal needs. Indigent residents of Rhode Island are our neighbors, friends, co-workers, perhaps family members. What they all have in common is a right to be heard in a court equal to that of the party that haled them to appear in court. What we all have in common is the right to equal treatment and a fair hearing.

At some point, some enterprising attorney with available resources will file an action specifically directed at the appointment of attorneys for indigents. Assuming that the Court, based on prior decisions, will have no other choice to rule in the indigent’s favor, our current legal system will be both professionally and budgetarily challenged. All of this could have been avoided if we had an Access To Justice Commission similar to those in most other states. It’s still possible to ameliorate the demand for legal services for those found to be informa pauperis. 

I leave with the coda of my book:

Rights are not commodities.

Geoffrey A. Schoos, Esq is the past President of the former Rhode Island Center for Law and Public Policy.

His most recent book, "Access to Justice on the Outskirts of Hope," is now available online and can be found on his website here.

 

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