| Remarks by Governor Ted Kulongoski |
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| January 23, 2006 |
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Robert Abrams Public Service Lecture at NYU Law School
Guardians of Democracy: Public Service and the Rule of Law
Thank you Bob for your gracious introduction and many years of friendship. I want to especially thank Reverend Donna Schoper of Judson Memorial Church for hosting us on such short notice.
Bob and I have both gone on to other careers since the days we worked together. But I still remember when – as Attorneys General – we would meet at annual conferences with our 48 colleagues from both parties. There were a lot of bright lights in that room – but none brighter, or more committed to equality, opportunity, and the rule of law – than you. So it is no surprise to me that NYU Law School established the Attorney General Robert Abrams Public Service Lecture in your honor.
Bob – tonight, I will explain why I believe that the guardians of our democracy are public service and the rule of law – and how the private bar can strengthen both. But as much as I hope that young lawyers here – and across America – will follow my argument, my greater hope is that they will follow in your footsteps.
If they do, they are certain to live a life of integrity, generosity and purpose. I also want to thank Dean Revesz for inviting me to deliver this year’s Robert Abrams Public Service Lecture. NYU is one of the top law schools in the country. Your graduates are respected leaders in business, politics and culture. So I am especially honored that you would choose a Governor from a state 3,000 miles away whose entire population is less than one-fourth of New York City’s. Finally, I want to offer a special thanks to all of the NYU law students who have come to the lecture tonight.
I try to keep up with the latest cultural trends, so I’m very aware that I’m competing this evening with the fifth episode of 24. I’m not sure there is any way I can make a one-hour lecture and discussion on public service a heart pounding thrill ride worthy of Agent Jack Bauer. To make matters worse, I’m not good with gadgets. I haven’t gone a whole day without sleep since I was discharged from the Marines. And unlike Jack Bauer – I have a name that’s nearly unpronounceable. Actually, since this is the “city that never sleeps” – maybe Kiefer Sutherland should be giving this lecture. There is at least one trait that I do share with the intrepid character played by Mr. Sutherland. We both chose a life of public service.
To have this opportunity talk to NYU law students about public service is more than enough reason for me to make the trip from Oregon to New York. As it happens, I crossed paths with Senator Clinton on my way here. She’s on the west coast and will be in Oregon Friday, being a political rainmaker – raising funds for her 2006 and possibly a 2008 campaign. And I’m in New York – taking a short break from the near record rain we’ve had in Oregon this month.
To my regret, I do not come to New York very often. This is a wonderful city – and NYU is one of its educational icons. But I want you to know that I have a natural affinity for this city because of its tradition of giving people whose faces are pressed up against the window of the American Dream a chance to find that dream.
I found that dream much like my grandparents did when they came to this country, and this city, a little over 90 years ago. As someone who was raised by nuns in an orphanage – I admire New York for being a place where everyone is given a chance – and encouraged to take a chance. This same characteristic is true of the west in general – and Oregon in particular. That’s why Oregon has always been the perfect home for me.
New York and Oregon share other values and goals. We both need to strengthen education and workforce training to compete in the global economy. New York ’s Adirondack Mountains, navigable rivers and network of lakes – from Lake Champlain to Lake George to the Finger Lakes – are an environmental treasure, but a treasure that is equally rich in Oregon ’s Cascade Mountains, Columbia River, and Crater and Klamath lakes.
Still, as a long-time political leader in Oregon, I can’t help noticing differences between our two states. Oregon didn’t become a state until the year before the start of the Civil War. So we haven’t quite lost our pioneer consciousness. We have a political system where the legislature meets only every other year – and where the public, through boards and commissions, plays an important role in policymaking and governance for almost every state agency.
The public can also step into the shoes of legislators through a ballot initiative process that is – by east coast standards – easy to use. In just the last two years, the people of Oregon voted down a tax package passed by the Legislature and – through Measure 37 – re-wrote land use laws that had been on the books for decades. The Oregon Supreme Court is now reviewing Measure 37. But the issue would never have reached our high Court if the public had limited means to make its voice heard.
So grassroots democracy is alive and well in Oregon. Maybe more so than any other state. But the important point is this: The mere fact that in Oregon there are tools – in addition to voting – that the public can use to change policy and hold political leaders accountable does not diminish the need for individuals to step up and serve the public. Especially lawyers.
I mentioned Senator Clinton. We come from very different backgrounds – and I haven’t spent eight hours in the White House, let alone eight years. But we do share one thing in common. We both finished law school and entered public service. She worked as a staff attorney for the House Impeachment Committee in 1973 – and later joined Marian Wright-Edelman at the Children’s Defense Fund. I clerked for a judge in Eugene Oregon and was elected to the Oregon Legislature. Later – like Bob Abrams – I became Attorney General, before becoming a justice on the Oregon Supreme Court.
If I come away from my many years of public service with one overriding belief it is this: I believe in the law – in its majesty, and in its power to right wrongs, protect the weak, and serve democracy. But the law can never fulfill these higher purposes without lawyers who are willing to enter public service.
I know that the Root-Tilden-Kern scholars who are here tonight have already made that choice. But as someone who has been a legislator, prosecutor, judge and Governor – I encourage all of you to do some public service for at least some part of your career. I’ll be the first to admit that much of the public believes that attorneys simply gum up the works. I’m here to tell you that the opposite is true.
Without good legal minds, the criminal justice system would collapse. But that is only the most obvious example. Government lawyers draft legislation, enforce regulations – everything from the environmental protection to civil rights to foster care – and represent the public in disputes with powerful private interests.
But there are many public service careers that are well suited to lawyers – but do not involve the active practice of law. My wife, Mary, is a lawyer and spent almost 20 years working for the Oregon State Bar. Many of my top policy advisors are lawyers – but with the exception of my General Counsel and his staff – none are actually practicing law. And lawyers direct and manage many of Oregon ’s most important non-profit organizations – organizations that protect the public, partner with government, and lobby in support of education, health care, and the environment.
I am a realist. I know that many NYU law students are heading for careers in private practice. NYU is a nationally ranked law school whose graduates are much in demand by large firms. I also know the pressures law school graduates are under when they have large student loans to repay. Here at NYU, you have an advantage over law students at many other schools. The student loan repayment program here at NYU supports a public law career.
So while I hope you will consider the public sector when you complete your law school education – and believe strongly that our democracy cannot survive without a strong public bar – I do not come here today as a recruiter for government service. I have great respect for the private bar. My legal career has been primarily as a private practitioner. My message today is much broader – and is aimed primarily at attorneys who do not choose public service.
Public service is one of two critical guardians of our democracy. The other is the rule of law. Because of my public service career, I’ve been asked many times: What is the most important principle that I believe about government. My answer is: The rule of law is the glue that holds our democratic system together. Citizens must have the opportunity to put the rule of law to work in their favor. Anything less is an invitation to unfairness – and eventually to anarchy.
The war on terror has become the greatest test of the rule of law in my lifetime. No American city has been a greater victim of terror than New York. Still, I believe we need to be very careful that in trying to defend ourselves in a dangerous world – we don’t end up undermining basic American values of due process, individual rights, separation of powers, judicial review, and legislative oversight. If we sacrifice the rule of law – we will have accomplished our enemy’s work for them.
I’m going to play law professor for a moment and ask a rhetorical question: I noted that lawyers who choose public service are the guardians of our democracy. But who stands guard over the guardians? I believe there is only one answer to this question: Lawyers in private practice who stand up and defend the right of every citizen to receive due process and equal protection of the laws.
In other words, the private bar must resolutely support the public bar. In every state, it is the responsibility of public sector lawyers – usually working for Legal Aid – to assure access to the courts and to protect the rights of indigent Americans. That’s why I hold Legal Aid lawyers especially close to my heart. They haven’t just chosen public service; they’ve chosen to stand up for people who have the least ability to stand up for themselves.
Legal Aid attorneys are the strongest advocates within our legal system for fair dealing between parties of unequal power. We’re all better off when the light of social justice is brought to families whose stories are invisible – and whose ability to fight back, without help, is a pipe dream.
That’s why I tell friends in Oregon who are private attorneys that Legal Aid needs them – but they also need Legal Aid. Poverty in the midst of plenty is bad enough. But poverty in the midst of plenty – with no way to level the playing field – is the mark of a state and nation whose star has fallen. But that is exactly where we will be heading unless Legal Aid is adequately funded – and Legal Aid attorneys are adequately compensated.
Let me give you a little history. In the 1980s, free legal representation for the indigent – which had always had bipartisan support – came under attack by an ideologically driven minority in Congress and the press. The biggest victim of this remorseless assault was the Legal Services Corporation – which funds grantees that provide legal services to indigent clients.
Opponents of the Legal Services Corporation and Legal Aid organizations did not – and still do not – argue that the courts belong to the rich. They simply don’t want government – especially the federal government – stepping in to help the poor. But this is a distinction without a difference. It is beyond dispute that millions of Americans would have no legal recourse against corporations, landlords, administrative agencies, and abusive partners and spouses without help from Legal Aid.
So the fight over the Legal Services Corporation was not about the role of government. It was about powerful interests with deep pockets looking for a way to remove inconvenient plaintiffs – and roll over poor and unsophisticated defendants. In 1995, federal funding for the Legal Services Corporation was cut by one-third.
At the same time, major restrictions were imposed on Legal Aid lawyers: No class action suits. No suits for attorney’s fees. No representing undocumented people. No lobbying. No counseling of clients in front of legislative bodies. No challenges to legislative redistricting – or welfare reform. The worst restriction is limiting how non-federal dollars can be spent if even one dollar is accepted from the Legal Services Corporation.
This last issue – the use of non-LSC dollars for restricted activities – has led to an important legal alliance between Oregon and New York. In 1997, the Legal Services Corporation promulgated a regulation that said entities receiving non-LSC funds and engaged in restricted activities must be “physically and financially separate” from organizations that receive federal dollars and are subject to the ban on restricted activities.
Many Legal Services Corporation grantees wanted to set up separate entities that would engage in the restricted activities but would not use federal dollars. Now they were being told that the new entity had to be physically separated from the organization accepting Legal Services Corporation funding – which would dramatically raise the cost of their doing business.
Three New York non-profit organizations sued to prevent enforcement of the regulation – as well as the legal restrictions on class action suits; educating potential clients on their legal rights and then offering to represent them; and the collection of attorney’s fees. The three plaintiffs were: Legal Services for New York City , South Brooklyn Legal Services, and Farm Worker Legal Services of New York.
The plaintiff’s claimed that the regulation was a mean-spirited, administratively burdensome, and an unconstitutional limitation on free speech. Because of the cost of setting up separate offices to handle restricted cases – virtually none of the Legal Services Corporation’s grantees could meet the requirements of the regulation. As it is, cash-short grantees only represent a small fraction of eligible clients. According to the Brennan Center for Justice, the physical separation requirement would force South Brooklyn Legal Services to turn away an additional 500 people each year.
In December 2004, a federal district judge in Brooklyn ruled in Dobbins v. Legal Services Corporation, that the regulation requiring physical separation was too burdensome and violated the First Amendment rights of the plaintiffs – and that the reasons given by the defendants were insufficient to justify the burden. That was the good news. The bad news was the judge denied challenges to the other restrictions placed on Legal Aid. This case is now on appeal before the Second Circuit Court of Appeals.
The injunctive relief provided in Dobbins only applies to the three plaintiffs in that case. But Oregon has picked up the baton first carried by New York and is going back to federal court. However, our case is somewhat different. Legal Aid Services of Oregon and the Oregon Law Center both filed complaints challenging the broad restrictions on the kind of cases Legal Aid lawyers can accept. But the state of Oregon filed a separate suit challenging the “program integrity rule” – which includes the requirement for separate offices. The cases are now consolidated.
The important point is that for first time a state is now a party to a suit that attempts to free Legal Aid from restrictions that serve no purpose other than to close the courthouse door to plaintiffs who have no ability to hire private attorneys. Oregon ’s argument is that the “program integrity rule” is a violation of the Tenth Amendment because it infringes on Oregon ’s sovereign right to decide how to structure a legal services program for its citizens.
The Oregon Attorney General is also arguing that the rule exceeds the federal government’s authority to control how federal dollars are spent because the conditions that Congress attached are impermissibly coercive. Not too surprisingly, the federal government filed a motion to dismiss. By coincidence Oregon’s response to that motion was due to be filed just a few hours ago. As for what happens next – all I can say is: Stay tuned.
Restrictions imposed on public service lawyers raise interesting constitutional questions for courts – and law students. But the core issue for the indigent is not “what does the Constitution allow.” It is “what protection does Legal Aid have the capacity – and funding – to provide.” Let me tell you about the situation in Oregon.
There are fewer than 100 Legal Aid attorneys in Oregon. This means that less than 1-percent of the bar is shouldering the responsibility of ensuring justice for more than 20-percent of the population. Today, only 18-percent of Oregonians who are eligible to receive free legal services can actually count on going into court, or even a negotiation, with a lawyer at their side. As for funding – the message from the federal government to states has essentially been: Legal services for the poor is your problem. And to prove they mean it – the fiscal year 2006 appropriation for the Legal Services Corporation was just cut by 3.5-million dollars from the previous year’s budget.
Because of the federal government’s near abdication of support for indigent legal services – in 2004 more than 70-percent of Oregon’s Legal Aid budget came from within the state. In 2005, we were able to increase state funding for Legal Aid by 1-million dollars because of a bill that I signed two years earlier that increased court filing fees. The irony of the federal government’s continued backtracking on its responsibility to assure fairness for indigent litigants is that it does not even make good political sense – let alone pass the test of decency.
According to national polls, we know that justice is one of a handful of core values that is supported by the overwhelming majority of Americans. Our citizens fundamentally believe in the rule of law – and that the Constitution demands equal treatment before the law. They also believe that justice must be blind to the status of the parties, that the courts must be a refuge from the arbitrary acts of government and the abusive acts of private entities, and that if more money is needed to pay for a justice system that is fair, impartial and protective of the weak, as well as the strong – that money must be found.
This explains why Americans – by a wide margin – say they want civil legal services and providing tax dollars to pay for them. Which brings me back to my question: If public servants – especially lawyers that represent clients who cannot afford the high cost of access to our legal system – are the guardians of democracy, who stands guard over the guardians?
Again, the answer is: The rest of the legal profession. Or more to the point – you.
In the Legal Services Corporation’s darkest hour – when there was talk of eliminating it or rendering it nearly useless – the Corporation was literally saved by lawyers, legislators and citizens, from both parties, who refused to remain silent while the constitutional rights of poor people were left to wither on the vine. This fight is now yours. But I promise you – you’ll have allies.
In Oregon, the Campaign for Equal Justice is a non-profit organization that supports Legal Aid. Over the last 15 years, the Campaign has raised 12-million dollars – with 8-million coming from the private bar in Oregon. Today, Oregon has one of the strongest – if not the strongest – partnership between the private bar and public advocates for the poor. But I’m still not satisfied. Only one in four members of the active bar contribute annually to the Campaign for Equal Justice.
That’s why Mary and I both spend time speaking out on behalf of the Campaign for Equal Justice – and encourage Oregon lawyers in private practice to contribute generously to Campaign. Now I bring the same message to NYU Law School.
This is one of the top schools in the country. As I said – your legal skills will be much in demand. Some of you and your classmates will stay in New York. Many will become lawyers in other states – with successful futures in private practice, business, and government. I hope at least a few of you end up members of the Oregon bar.
To those of you who decide to devote your professional training and energy to public service – you have not only my appreciation, but also my confidence that you are heading toward a very rewarding career. But the private practice of law is an equally honorable profession – and indispensable to a free society, especially when the private bar is not standing on the sidelines in the fight to preserve the rule of law – and guarantee fundamental fairness for all our citizens.
In Oregon we have the Campaign for Equal Justice. But wherever you end up – there will be opportunities for pro bono work, and there will be a Legal Aid office or an organization dedicated to protecting Legal Aid. So step up. Be a volunteer for Legal Aid. Write a check. And advocate for greater funding for the Legal Services Corporation.
John Wesley – founder of the Methodist Church – wrote: “Do all the good you can. By all the means you can. In all the places you can. To all the people you can. As long as you can.” The guardians of democracy – public interest lawyers – are out there doing all the good they can to make the words “equal justice under law” a reality for millions of our fellow Americans who would otherwise be left outside the courtroom door.
Do all the good you can – by standing with them.
Thank you.
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