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Litigation as a social reform tool

15 October 2009

This article first appeared in LawTalk on 12 October 2009.

Litigation as a tool to achieve social reform may have a place in New Zealand, Chapman Tripp principal Daniel Kalderimis suggested during a Fulbright Alumni Seminar in Wellington on 21 August. 

“Whilst political lobbying in New Zealand has become rapidly more sophisticated over the past 15 years, we have not, yet, embraced the part of US legal culture which seamlessly incorporates ends oriented litigation into social reform strategies,” he said. 

Daniel Kalderimis outlined the “most significant litigation lesson” he learnt from studying and teaching at Columbia Law School from 2002-2004. 

Despite the diversity of options available to Columbia graduates, the options could be divided according to a simple dichotomy: are they for profit (meaning heartless) or public interest (meaning penniless)?

“Those who saw their role as falling within the former category tended to gravitate towards midtown or Wall St firms.  Those attracted to public interest roles found themselves seeking jobs as public defenders, government, non-profit or NGO lawyers seeking to enforce labour, housing, civil rights or environmental laws through directed legal action. 

“Strange to say, perhaps, but I felt as if I hadn't encountered this distinction from practice in New Zealand,” he said.

“You were instructed by clients to take cases, you took them and did your level best, with diligence, dignity and professionalism.  And whether you won or lost, you accepted the results. 

“This process - admittedly reactive, rather than proactive - held a beauty and purpose all of its own.  Law reform was also important - but it was really a separate exercise.  Innovative arguments could be pursued to win a case, but it was rare indeed to pursue a case simply to seek acceptance of innovative arguments. 

“At Columbia it was evident that this latter objective was viewed as a perfectly proper use of litigation - as a tool to achieve social reform.  And moreover that this was seen by many as a necessary part of the broader socio-political context.” 

The understanding that racism had a social structural dimension as well as a purely personal one was vindicated in possibly the most famous US case of all time - Brown v Board of Education, decided in 1954. 

“Columbia Law School Professor Jack Greenberg cut his teeth on that case working under Thurgood Marshall, who at that time was the Legal Director of the NAACP Legal Defense Fund, and later became the first African-American appointee to the US Supreme Court.

“Professor Greenberg, who himself went on to direct the Legal Defense Fund, wrote a memoir of sorts entitled Crusaders in the Courts, which became a classic. 

“That title would, I suspect, discomfort many lawyers in New Zealand, who like to view litigation as anything but a crusade.  So whereas litigation in New Zealand is conducted soberly and dispassionately under the shadow of parliamentary sovereignty, robust and socially engaged litigation in the United States is seen by many as a legitimate mechanism to alter the status quo.

“An obvious riposte, of course, is that the US has a written constitution - many in fact, including all the state constitutions as well as the federal constitution.  But I think this is only a partial answer. 

“For the exception, as well as the rule, can be seen in the New Zealand cases which have deliberately sought to challenge the status quo. 

“The seminal case is, of course, - and may always remain - Wild CT's 1976 decision in Fitzgerald v Muldoon.  But there are others, which include, to my mind:

  • Finnigan v NZRFU (in which the plaintiffs were members of local rugby clubs who sought standing to judicially review the NZRFU's decision to send a team to tour apartheid South Africa, following the divisive 1984 Springbok tour)

  • Quilter v Attorney General (which sought a declaration that New Zealand's Marriage Act 1955 which did not expressly define marriage as a union between a man and a woman, though an amendment did introduce the words husband and wife - could be construed to permit same-sex marriages)

  • several cases since 2000 taken, on the one hand by the Human Rights Action Group, and on the other by the Society for the Promotion of Community Standards, challenging various film classifications under the Films Videos and Publications Classification Act 1993

  • the cases involving Ahmed Zaoui which eventually resulted in his being granted bail by the Supreme Court, and

  • some recent cases which indicate that our politicians may be amongst our most active users of strategic litigation - here I am thinking of Dunne v CanWest (which resulted in a High Court injunction requiring TV3 to include Peter Dunne and Jim Anderton in a leader's debate) and the decision early this year in Boscawen v Attorney-General (in which two Act MPs and the spokesperson for the Sensible Sentencing Trust sought to challenge the legality of the Electoral Finance Act 2007 on the basis that the Attorney-General had failed to issue a report under s7 of the NZBORA). 

“It remains true that many of the factors which incentivise public interest litigation in the US do not exist to the same extent in New Zealand. 

“These include a large heterogeneous population, numerous well-funded nonprofit entities, a strong pro bono legal culture, contingency fees, class actions and relative difficulty in amending legislation directly and, sometimes, in ensuring effective regulation without recourse to litigation. 

“But the first few of these factors are not totally absent.  Our small population is becoming increasingly diverse, New Zealand has many charitable institutions, law firms do encourage pro bono work, conditional fee arrangements are accepted and class actions are coming. 

“The big differences, then, are that: (1) it remains very easy to alter the laws through our unicameral parliament in our unitary state, especially when elections are held every three years; and (2) probably because of this, one of the problems New Zealand tends not to suffer from greatly is an absence of regulation.  But this tendency itself creates space for instrumentally-oriented litigation. 

“It has long been remarked upon that New Zealand tends to legislate in haste and repent at leisure, only to do so again three years later.  Sometimes this is to the detriment of those who, being a minority, or unpopular, or both, cannot easily defend themselves. 

“We have a malleable, partially written constitution - which, depending upon who you ask, includes the Magna Carta and the 1688 Bill of Rights preserved by the Imperial Laws Application Act, the Treaty of Waitangi, the NZBORA, the Constitution Act, Parliament's Standing Orders and a variety of constitutional conventions, not to mention international obligations.  We have a well-developed jurisprudence of judicial review of administrative action.  And we have the sheer weight of legislation and regulations, which are often ambiguous or conflicting. 

“These - together with the inherent flexibility of the common law - provide numerous mechanisms for creative law suits.

“The courts are, quite understandably, wary of encouraging such litigation; or at least its more extreme and less cogent exponents.”

Daniel Kalderimis said he was unsure where he sat on the divide.  By nature and temperament, he believed in the value of a professional approach and dignified moral authority.

“There is something admirable in an advocate who fearlessly presents their client's case as a professional, not a campaigner.  New Zealand lawyers tend to be good at this,” he said. 

“But I think there is a place also for lawyers such as Thurgood Marshall and Jack Greenberg working deliberatively to ensure that in suitable cases justice is done through the courts, even if this means constructing - as did the legal team in Finnigan - an appropriate legal case to challenge decisions or laws.”

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