Duties of the Judicial System to the Pro Se Litigant

• Publication year: 2013

§ 30 Alaska L. Rev.189. DUTIES OF THE JUDICIAL SYSTEM TO THE PRO SE LITIGANT

Alaska Law Review
Volume 30, No. 1, June 2013
Cited: 30 Alaska L. Rev. 189

DUTIES OF THE JUDICIAL SYSTEM TO THE PRO SE LITIGANT

Mark Andrews ^[*]

ABSTRACT

Alaska courts have assisted unrepresented litigants in civil cases, explaining procedural technicalities to pro se litigants and applying more lenient standards to pro se pleadings. Although the origin of this policy is unclear, the Alaska Supreme Court in Breck v. Ulmer held that the trial court should advise pro se litigants of procedural requirements and hold pro se litigants to less stringent standards than attorneys. However, two recent cases, Greenway v. Heathcott and Wagner v. Wagner, have complicated Alaska's policy by adopting different approaches regarding when a court should advise a pro se litigant of procedural requirements. This Article proposes that, based on the State's recognition of a constitutional right to represent oneself, Alaska courts apply a due process analysis to judicial duties toward self-represented litigants to ensure that courts consistently recognize and protect pro se litigants' interests.

INTRODUCTION

Across the United States, an increased number of litigants have chosen to forego attorneys and instead represent themselves in court, particularly in civil matters. The State of Alaska has seen a similar upward trend in pro se litigants. ^[1] This is particularly obvious in fields such as family law. In an estimated twenty-five percent of contested domestic relations cases in Alaska, both parties have lawyers. ^[2] In the remaining seventy-five percent of cases, however, either one or both of the parties represent themselves. ^[3] Among domestic relations cases that are uncontested or have post-judgment proceedings, ninety-five percent of litigants are unrepresented. ^[4]

Since deciding Breck v. Ulmer ^[5] in 1987, the Alaska Supreme Court has held the pleadings of some pro se litigants to a less stringent standard than represented parties, even finding in some cases an affirmative duty of the trial court to explain to pro se litigants the technical points of procedure. ^[6] In addition to increasing access to the courts, this policy of pro se leniency has promoted the resolution of disputes on their merits, rather than on technical errors made by an unrepresented party.

For twenty-five years, Breck served as a useful guidepost for dealing with the actions of pro se litigants. Within the last year, however, the Alaska Supreme Court has decided two cases that have rendered this policy of leniency in Alaska less clear. ^[7] As a result, it has lost some of its force. Wagner v. Wagner ^[8] and Greenway v. Heathcott ^[9] not only bring the applicability of the pro se leniency policy into question, but they also create conflicting precedent in the Alaska court system.

This Article examines the question of what degree of procedural flexibility is owed to an unrepresented civil litigant ^[10] in Alaska trial courts, and calls on the Alaska Supreme Court to resolve the issue to promote a coherent, consistent, and useful policy that protects the pro se party. First, this Article explores whether there is any grounding for the policy of leniency outside of case law. Next, it traces and summarizes the development of the pro se leniency policy in Alaska case law through 2012. Finally, the Article discusses the two most recent cases, Wagner and Greenway, and highlights the confusion and uncertainty these decisions are likely to create.

I. THE POLICY OF PRO SE LENIENCY LACKS A CLEAR SOURCE IN ALASKA LAW

The unrepresented litigant in Alaska receives procedural leniency, but the initial source of such a policy is unclear. There is nothing explicitly requiring such treatment in the Alaska Constitution, the Alaska Statutes, the Code of Judicial Conduct, or the Rules of Professional Conduct.

There is ample authority that the Alaska Rules of Civil Procedure should be interpreted to promote the "just, speedy and inexpensive determination of every action and proceeding." ^[11] The trial court may relax the Rules when "strict adherence to them would work a manifest injustice." ^[12] But these Rules apply to every litigant. The Rules lack a policy that specifically covers civil litigants who are unrepresented. Due process protections within the United States Constitution may also provide some basis for the policy of pro se leniency. Recently, the United States Supreme Court held in Turner v. Rogers ^[13] that the Fourteenth Amendment requires state assistance to the unrepresented civil litigant when the possible outcome includes incarceration. ^[14] The required state assistance sometimes, but not always, extends to appointment of counsel. ^[15] Even when state assistance does not go so far as to appoint counsel, the risk of incarceration still calls for some higher degree of due process protection. Accordingly, "the State must . . . have in place alternative procedures that assure a fundamentally fair determination of the critical incarceration-related question." ^[16]

The Alaska Supreme Court has never cited Turner v. Rogers, and the opinion does not stand for any general constitutional right to leniency in favor of unrepresented parties. It is also, of course, narrowed by the fact that there must be a risk of incarceration to invoke its holding. Nonetheless, the case suggests that there is some foundation in the Fourteenth Amendment for a policy of pro se leniency, and Alaska courts should draw on this principle to extend due process to self-representation.

II. DUE PROCESS PROTECTIONS SHOULD EXTEND TO THE RIGHT OF SELF-REPRESENTATION

Alaska recognizes a constitutional right to represent oneself. In McCracken v. State, ^[17] the Alaska Supreme Court found that the right to self-representation was among the rights retained by the people under the Alaska Constitution. ^[18]

In McCracken, a prisoner filed a petition for writ of habeus corpus in the Juneau Superior Court and requested to represent himself. ^[19] The Alaska Supreme Court held there was a right to self-representation under the Alaska Constitution, but that the right is not absolute. ^[20]

For the Due Process Clause to apply, "an individual interest [must be] of sufficient importance to warrant constitutional protection." ^[21] Following the decision in McCracken v. State, the right to represent oneself in court should be considered one such interest and thus should be entitled to due process protection. ^[22] This interest is subject to the same analysis as any other under the Due Process Clause. ^[23] In 1977, in City of Homer v. State, ^[24] the Alaska Supreme Court adopted the federal due process analysis set forth in Mathews v. Eldridge ^[25] the previous year. ^[26] Mathews found that when a federal statute enacted Social Security benefits, the statute created a property interest protected by the due process clause. ^[27] In Alaska the right to self-representation is secured by statute. ^[28] Later, in In re Urie, the Alaska Supreme Court similarly used the Eldridge test:

Under due process we will review the bar rule provision [relating to admissions] by considering three main factors: (1) the nature of the private interest affected, (2) the risk of erroneous deprivation of that interest by the procedures used, and the probable value, if any, of any additional or substitute procedural safeguards, and (3) the state's interest, including the fiscal and administrative burdens that additional or substitute procedural requirements would entail. ^[29]

Due process protects the right to self-representation from arbitrary denial. It ensures a pro se litigant's claim will be heard despite a litigant's potential lack of familiarity with procedure. ^[30] Due process, however, has its inherent limits: relaxed procedures must not deprive the opposing party of his own rights to due process, and must preserve the impartiality of the court.

Standing alone, the constitutional right to represent oneself is settled in Alaska law. However, the Alaska Supreme Court has never expanded McCracken to require a policy of leniency toward pro se litigants under the Alaska Constitution. The right to self-representation presents some distinct due process issues. Considerations unique to the policy of leniency make the due process analysis more difficult than in other scenarios. For example, other due process questions typically involve two adverse parties, with the court as a neutral decision maker. But as to pro se litigants, the court must also protect its role as a neutral decision maker. The Alaska Code of Judicial Conduct, which consists of five canons intended to establish standards for the ethical conduct of judges, emphasizes that a judge must be mindful of judicial integrity and must maintain the appearance of neutrality and fairness. ^[31] All five judicial canons of conduct deal in some way with impartiality and the restraint on behavior that impartiality requires. ^[32]

The trial court sometimes has an affirmative duty to advise pro se litigants about certain things, such as the need to include affidavits when opposing summary judgment ^[33] or the method by which a party may attempt to withdraw admitted statements. ^[34] When the trial court gives such advice, its own neutrality may become an issue. The Alaska Supreme Court has taken note of the trial court's sensitive role when giving advice to a pro se...