Court View Inside banner image

Open courts: injury and remedy

June 17, 2020

In February 2020 the National Center for State Courts, in partnership with the Self-Represented Litigation Network (SRLN), published a new Justice for All website aimed at addressing the needs not only of those already in the court process but also people with unmet civil legal need who could benefit from legal help—even if they don’t yet realize their problems have a legal solution. The COVID-19 crisis has added to the focus on courts remaining open.

Most states have specific constitutional access to justice provisions that address several of the issues brought up in Justice for All project.

  • Open courts – 27 states have language that courts "shall be open" or that justice "shall be administered openly"
  • Injury/Remedy – 36 states provide that the courts are to address injuries suffered.  34 states include the need for a remedy as well (Florida uses the word "redress" while Wyoming simply says that "every person… shall have justice administered.")

These provisions made their way into several key aspects of modern court administration. For example, the Principles for Judicial Administration notes that

Where found, open court requirements are usually contained in states’ bills of rights and not the judicial articles. The implication to this placement is clear: the right to go to court is not an operational requirement placed on the judiciary but rather a fundamental right retained by the people.

These provisions also discuss the need for prompt justice, borrowing language from the Magna Carta nulli vendemus, nulli negabimus aut differemus rectum vel justiciam - To none will we sell, to none will we deny, to none will we delay right or justice.

  • 36 state constitutions have language against delay
  • 32 states against denial
  • 28 prohibit the sale, selling, or purchase of justice; Illinois uses the term "freely"

During the COVID-19 crisis state judiciaries made a point of noting they remained open, even if in-person access was restricted, for addressing urgent or emergency needs. Samples of such orders can be found at the Administrative Orders section of the National Center's Coronavirus and Courts website www.ncsc.org/pandemic