MONEA 1/21/2019 4:20 PM THE ADMINISTRATIVE POWER: HOW STATE COURTS CAN EXPAND ACCESS TO JUSTICE Nino C. Monea ABSTRACT This article examines the administrative power of courts and the ways it can be used to expand access to justice. Administrative power, or rulemaking power, is the power that state supreme courts have to regulate the lower courts, rules, practice and procedure, and the legal profession. Although they are often underutilized, these powers have great potential to address the access to justice crisis throughout the nation. For virtually every area of law is touched by the administrative power of courts. This article details the extent of the access to justice crisis, charts the history of administrative powers over time, and explores their benefits. It then proposes five solutions that state high courts should implement: (1) making courts more accommodating to self-represented parties, (2) opening up the justice system so that non-lawyers can play more meaningful roles in court, (3) using summary jury trials to reduce the costs of litigation for civil plaintiffs, (4) reforming pro bono so that more lawyers contribute to it, and (5) establishing and expanding funding mechanisms to pay for access to justice initiatives. In the end, this article seeks not only to convince courts to adopt reforms, but to convince legal reformers that the rulemaking powers of courts should be given as much attention as traditional litigation to advance reform. Law Clerk, Michigan Supreme Court; 2014 B.S., Eastern Michigan University; 2017 J.D., Harvard Law School. The views expressed in this article are my own. Thank you to James Tatum, Dani Young, Pete Davis, and Loren Voss for their helpful comments on the article. 207 MONEA 1/21/2019 4:20 PM 208 GONZAGA LAW REVIEW Vol. 53:2 TABLE OF CONTENTS INTRODUCTION ................................................................................................ 209 I. THE ACCESS TO JUSTICE CRISIS ........................................................... 212 A. The Poor Cannot Obtain Adequate Legal Representation or Assistance ................................................................................ 212 B. Lack of Funding Is a Key, but not Sole Driver of the Shortage of Civil Legal Aid ......................................................................... 214 C. Impact of the Shortage of Legal Assistance for the Poor ............. 216 D. Barriers Prevent Lawyers from Pursuing Careers as Legal Aid Attorneys................................................................................ 219 II. ADMINISTRATIVE POWERS................................................................... 221 A. Historical Origins ........................................................................ 221 1. Founding of the Nation: Silence on Administrative Power ... 222 2. Early 19th Century: Constitutional Administrative Power Emerges in Fits and Starts ..................................................... 224 3. Modern Trend: Unification and Standardization of the Judiciary....................................................................... 226 B. Advantages of Administrative Power ........................................... 227 III. PROPOSED REFORMS ............................................................................ 231 A. Making the Court System More Accessible to Self- Represented Individuals ............................................................... 232 1. Improve Self-Help Materials ................................................. 232 2. Create Guidelines for Courts Handling Self- Represented Litigants ............................................................ 236 B. Opening up the Justice System so that Non-Lawyers Can Play More Meaningful Roles................................................................ 238 C. Summary Jury Trials: A Method that Reduces the Cost of Litigation While Maintaining Core Procedural Safeguards ........ 244 D. Pro Bono Reforms to Increase the Number of Hours Lawyers Devote to Helping the Poor ......................................................... 250 E. Funding Mechanisms to Finance Access to Justice Initiatives .... 254 1. Pro Hac Vice Fees ................................................................. 255 2. Interest on Lawyers’ Trust Accounts ..................................... 256 3. Cy Pres for Class Action Settlements .................................... 258 IV. CONCLUSION ........................................................................................ 260 MONEA 1/21/2019 4:20 PM 2017/18 THE ADMINISTRATIVE POWER 209 INTRODUCTION Ask any lawyer, law student, or lay person what the role of a court is, and chances are they will reply, “to hear cases and interpret laws.” In one sense, this is accurate. Over 100 million cases were filed in state courts in 2010.1 On television we see what dramatic scenes can play out in courtrooms. In the news we read about appellate decisions announced and outcomes from contentious trials. Within the legal profession, the focus is almost entirely on under-standing, arguing, and complying with legal standards laid down by courts. Accurate as this picture may be, it is also incomplete. For courts possess another power, less well-known and yet no less important. This power touches every aspect of the legal system, from filing a complaint to maintaining an appeal. It is the administrative power. It is relatively easy to grasp the traditional meaning of judicial power. Courts have the power to hear cases between two parties in conflict over a dispute in the law. The judge will receive evidence, review precedent and statutes, and hear the arguments of the parties. After considering all of it, the judge will render a decision of what the law means and order some form of relief. This can be money damages or equitable relief in a civil case, or an acquittal or conviction in a criminal case. Administrative power, in contrast, is more nebulous. This is partially due to the fact that the topic is seldom studied. Law school curriculums’ heavy emphasis on the “case method”—having students read opinions by appellate judges— focuses almost exclusively on traditional notions of judicial power. Harvard Law School, one of the largest in the country, does not offer a course on the administrative power of courts.2 General primers on the functions of courts often do not mention it.3 The contours of administrative power vary from state-to-state. In Missouri, rules promulgated by the supreme court have the force and effect of law and supersede conflicting statutes.4 In contrast, the Ohio Supreme Court has controlling power for matters of “procedure” but cannot alter a “substantive 1. See ROBERT C. LAFOUNTAIN, ET AL., NAT’L CTR. ST. CTS., EXAMINING THE WORK OF STATE COURTS: AN ANALYSIS OF 2010 STATE COURT CASELOADS 1 (2012), http://www. courtstatistics.org/other-pages/~/media/microsites/files/csp/data%20pdf/csp_dec.ashx. 2. See generally Course Catalog, HARV. L. SCH., http://hls.harvard.edu/academics /curriculum/catalog/index.html (last accessed Oct. 8, 2017). 3. See, e.g., Comparing Federal & State Courts, U.S. CTS., http://www.uscourts.gov/ about-federal-courts/court-role-and-structure/comparing-federal-state-courts (last accessed Oct. 8, 2017). 4. State ex rel. Union Elec. Co. v. Barnes, 893 S.W.2d 804, 805 (Mo. 1995). MONEA 1/21/2019 4:20 PM 210 GONZAGA LAW REVIEW Vol. 53:2 right.”5 Conversely, Utah’s high court can adopt rules of procedure and evidence, although it can be overridden by a two-thirds vote of the legislature.6 These three states showcase the variance between the states, and even its name can be tricky to pin down. It may go by supervisory power, rulemaking authority, inherent power, general power, or superintending control. Although the power is broad, it usually falls within a few categories. First, state supreme courts typically have appointment powers. This includes the ability to assign the judges of lower courts,7 select the administrators to oversee operations of the court system,8 or designate a judge of lower courts as the chief judge of that court.9 In some instances, the supreme court can even appoint judges outright.10 Second, state supreme courts may prescribe rules for practice and procedure of the court system.11 This empowers high courts to create a wide range of rules too broad to fit neatly into any one category. Think of this power as authorizing supreme courts to create state counterparts to the Federal Rules of Civil and Criminal Procedure, along with special rules for family court, small claims courts, appellate practice, evidence, and so forth. Often, these rules must not affect the parties substantive rights and only focus on procedural rights.12 On a practical level though, the precise distinction between these two rights is difficult, if not impossible, to tease out. Third, these courts may regulate the practice of law. Powers include the ability to oversee admission to the bar, discipline lawyers, and disbar members.13 These descriptions may be vague, but the exercise of the power can be very specific. In Nebraska, for instance, the supreme court issued a lengthy opinion analyzing whether an attorney’s education from a Canadian law school was functionally equivalent to the education received at an ABA accredited law school.14 Whatever the extent of the power, a common method to exercise the power is through administrative orders.15 As the name implies, they are similar in form 5. Havel v. Villa St. Joseph, 963 N.E.2d 1270, 1272 (2012). 6. Injured Workers Ass’n of Utah v.