Is ‘Private Justice’ Fair?

When commentators describe Americans as a litigious people, they usually ascribe that attribute to some basic contentiousness. In fact, it is a consequence of pluralism.

American nationality is a creature of reason rather than tradition. It arises from an assent of the mind rather than a call of the blood. The English, Germans, Russians and Chinese are peoples in that older, tribal sense; Americans are something new in history, a people of various cultures bound together by their common acceptance of a statement of principle--the Declaration of Independence--and a compact for its application--the Constitution with its Bill of Rights.

Americans make recourse to their courts as the arbiters of that compact in the same way that other peoples call upon their shared cultural patrimony. That is why the principle of equal access to those courts must be maintained. And that is why the presidents of the American Bar Assn. and the State Bar of California were right Tuesday when they criticized the increasing use of so-called “rent-a-judges” as a step toward creating one system of justice for the rich and another for the poor and middle class.

As California’s civil courts have become increasingly congested, wealthy litigants have been allowed to circumvent the legal traffic jam by hiring retired judges to preside over settlements and, sometimes, even trials of their disputes. These private jurists charge as much as $250 an hour for their services. Unable to afford them, those average people of modest means must get in line and wait as long as five years for a regular judge to hear their case.

California Chief Justice Malcolm Lucas has appointed a committee to investigate the practice of hiring judges. Tuesday, the committee was told by ABA president Robert Raven that he fears the trend may create “a private justice system for those who can afford it, and an even more crippled system for the poor and those charged with crimes.” Alan Rothenberg, president of the state bar, agreed and argued that if the wealthy are allowed to purchase their own judicial system, the political will to pay for running the public courts will evaporate.

We agree with both sets of reservations. For similar reasons, we also oppose the nearly identical ballot initiatives on criminal justice being promoted by gubernatorial candidates Pete Wilson and John Van de Kamp. If passed, both proposals would not only exacerbate civil court congestion, but also create one system of criminal justice for those rich enough to retain their own lawyers and another for those whose lesser means force them to rely on appointed counsel.

Like the advent of hired judges, this is an innovation that ought to be resisted. Just as all Americans are equally subject to the law’s demands, they must have equal recourse to its remedies. If it is to maintain its indispensable moral authority, the rule of law cannot allow for a caste system.