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Sunday, November 15, 2015

"Because Families Matter"... An Amazing Moment

At the ELLA B Reception, Conference, Because Families Matter: Enhancing Parental Defense in New York, Albany, New York, November 13, 2015, Janet Ghattas, myself, Angela O. Burton, Director, Quality Enhancement, Parent Representation, N.Y.S. Office of Indigent Legal Services. 

Forty-four year ago,  in 1971,  I brought an appeal in New York State's highest court because my client had been deprived of the care and custody of her three year old child due to the government's belief that she had neglected her child. She had a defense but she was unable to present it effectively. She was alone in court and unable to pay a lawyer.  The proceeding lasted about two minutes and her child was gone into the limbo of foster care.  The case was entitled, Matter of ELLA B. I was working at the Legal Aid Society of Westchester County in White Plains, New York.  The case came to my desk.  I appealed to the New York's intermediate appeals court which unanimously affirmed the Family Court's action in taking the child away from Ms. B.  The Court of Appeals in Albany granted my motion for permission to appeal, and, a few months later, ruled that indigent parents have a constitutional right to the assistance of counsel assigned by the court in child neglect proceedings, noting, "the gross inherent imbalance of experience and expertise between the parties if the parents are not represented by counsel."  Subsequently, the New State Legislature enacted a comprehensive system of court appointed attorneys for litigants in several kinds of proceedings in the State's Family Courts.

Imagine my amazement when, decades later, a couple of weeks ago, I received a call inviting me to attend and speak at a reception for the ELLA B case. It was an exciting experience to be with almost two hundred lawyers attending a conference entitled Because All Families Matter: Enhancing Parental Defense In New York. The conference was the first of its kind, organized by the New York State Office of Indigent Legal Services, which was initiated in 2010 to support "the efforts of counties and court appointed lawyers to deliver high quality, effective and cost-effective assistance of counsel to financially disadvantaged clients." The New York State Defenders Association and the Child Welfare Court Improvement Program also sponsored the conference. 

30 N.Y.2d 352 (1972)

In the Matter of Ella B., a Child Alleged to be Neglected. Louis P. Kurtis, as Commissioner of Social Services of Westchester County, Respondent; Jeri B., Appellant.

Court of Appeals of the State of New York.

Argued May 5, 1972.
Decided June 8, 1972.

John T. Hand for appellant.

John J. S. Mead, County Attorney (Justin F. Collins of counsel), for respondent.

Louis J. Lefkowitz, Attorney-General (Maria L. Marcus and Samuel A. Hirshowitz of counsel), in his statutory capacity under section 71 of the Executive Law.


Chief Judge FULD

Whether the Family Court is required to advise an indigent parent, charged with child neglect, that he is entitled to be represented by assigned counsel is the question presented by this appeal.1
In June of 1969, the Westchester County Commissioner of Social Services, the petitioner-respondent herein, filed a charge of child neglect against the respondent-appellant. The petitioner asserts that the appellant left her three-year-old daughter home alone between one and four o'clock in the morning of June 21 and that, during her absence, the little girl was allegedly kidnapped and raped by a friend of the appellant. The child was represented by a law guardian. When the matter came before the Family Court, the judge presiding, after reading the petition to the appellant, spoke to her as follows:
"You may be represented by an attorney in this proceeding, in which case you must obtain one yourself, and pay for him out of your own funds, or you may waive an attorney and either admit or deny the facts in the petition if you want. Do you want an attorney?
"MRS. B.: No.
"THE COURT: Do you admit the facts in the petition?
"MRS. B.: Yes, I do."

Thereupon, without further ado, the judge stated that he was "going to find that [the appellant's daughter] is a neglected child and will continue the child in custody of the Child Protective
Services". An order was entered adjudicating her a neglected child and directing that she be placed in the petitioner's custody.2

Very shortly after the adjudication of neglect, which was made in July, 1969, the appellant obtained the assistance of the Legal Aid Society. A notice of appeal was filed and, in September, a Legal Aid attorney instituted a proceeding to terminate the child's placement with the petitioner. In February, 1970, while the proceeding was pending, the youngster was informally returned to her mother's home. At the termination hearing some months later — in the fall of 1970 — the appellant's attorney, after some preliminary cross-examination of the one witness called, declined to continue the defense because of a "misapprehension" of the nature of the proceeding and moved to strike "all" proceedings previously held and to have a hearing de novo. The judge denied the motion, adhered to his original determination and continued the child in the petitioner's custody, noting that she could be taken from the mother's physical custody upon the petitioner's application.

The Appellate Division unanimously affirmed the original order of July, 1969, and the appeal is before us as of right on constitutional grounds (CPLR 5601, subd. [b], par. 1).
The determination must be reversed. In our view, an indigent parent, faced with the loss of a child's society, as well as the possibility of criminal charges (Family Ct. Act, §§ 1014, 1052, 1055; Penal Law, § 260.10), is entitled to the assistance of counsel. A parent's concern for the liberty of the child, as well as for his care and control, involves too fundamental an interest and right (see, e.g., Stanley v. State of Illinois, 405 U.S. 645; Matter of Spence-Chapin Adoption Serv. v. Polk, 29 N.Y.2d 196, 203), to be relinquished to the State without the opportunity for a hearing, with assigned counsel if the parent lacks the means to retain a lawyer.3 To deny legal assistance under such circumstances would — as the courts of other jurisdictions have already held (see, e.g., Cleaver v. Wilcox, 40 U. S. Law Week 2658, decided March 22, 1972; State of Jamison, 251 Or. 114, 118; see, also, Boddie v. Connecticut, 401 U.S. 371; Note, Child Neglect: Due Process for the Parent, 70 Col. L. Rev. 465; but cf. In re Robinson, 8 Cal.App.3d 783, cert. den. sub nom.Kaufman v. Carter, 402 U.S. 954, 964) — constitute a violation of his due process rights and, in light of the express statutory provision for legal representation for those who can afford it, a denial of equal protection of the laws as well. As the Federal District Court wrote in the very similar Cleaver case (40 U. S. Law Week, at p. 2659), "whether the proceeding be labelled `civil' or `criminal,' it is fundamentally unfair, and a denial of due process of law for the state to seek removal of the child from an indigent parent without according that parent the right to the assistance of court-appointed and compensated counsel. * * * Since the state is the adversary * * * there is a gross inherent imbalance of experience and expertise between the parties if the parents are not represented by counsel. The parent's interest in the liberty of the child, in his care and in his control, has long been recognized as a fundamental interest. * * * Such an interest may not be curtailed by the state without a meaningful opportunity to be heard, which in these circumstances includes the assistance of counsel."

Once the conclusion is reached that one has a right to be represented by assigned counsel — and, as noted, the petitioner does not dispute that the appellant did have such a right — it follows that one is entitled to be so advised. If the rule were otherwise, if the party before the court was not apprised of hisright to assigned counsel, there could be no assurance either that he knew he had such a right or that he had waived it. Certainly, the appellant in the present case could not have realized that she would have been provided with a lawyer if she could not afford to retain one. In point of fact, the judge actually told her that, if she desired an attorney, "you must obtain one yourself, and pay for him out of your own funds". This statement completely excluded the availability of assigned counsel or other free legal assistance. Consequently, the appellant's negative answer to the question, "[d]o you want an attorney?" could not possibly be deemed an intelligent or understanding waiver of her right to counsel. (See, e.g., Matter of Lawrence S., 29 N.Y.2d 206; People v. Witenski, 15 N.Y.2d 392.)

It is true that the appellant was represented by an attorney in the later proceeding to terminate the child's placement. As noted above, the trial judge there denied the motion of her counsel for a de novo hearing, refused to terminate the child's custody and continued placement "with the Commissioner of Social Services." Because of the paucity of evidence at such hearing, however, it is manifest that the trial judge's decision was influenced more by his earlier determination of neglect — based, as indicated, solely on the appellant's uncounselled plea "admit[ting] the facts in the petition" — than by the child's apparent need for continued supervision. However, we do not believe it necessary or desirable to reverse or vacate the initial order (of July, 1969). We meet the exigencies of the case if, without impairing the effectiveness of that order, we remit the proceeding to the Family Court for a rehearing, both adjudicatory and dispositional (Family Ct. Act, §§ 742, 743), at which the appellant will, of course, be represented by counsel.
The order appealed from should, therefore, be modified, without costs, and the matter remitted for further proceedings in accordance with this opinion and, as so modified, affirmed.
Order modified, without costs, and matter remitted to Family Court, Westchester County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.

1. The Family Court Act (§ 1043, subd. [a]; prior to May 1, 1970, § 343, subd. [a]) makes provision for legal representation but is silent with respect to the right of indigent parents to assigned counsel:
"The court shall advise the parent or other person legally responsible for the child's care of a right to be represented by counsel of his own choosing and to have an adjournment to send for counsel and consult with him."

2. Not a word had been said to the appellant that she might lose the custody of the child. Indeed, as the colloquy between the judge and her made clear, she believed that she would be permitted to take the child home and, after the judge indicated that the child was to be taken from her, she made a feeble, and unsuccessful, attempt to set forth circumstances which might have provided a basis for a meritorious defense in the hands of an attorney.

3. The petitioner acknowledges that an indigent parent is entitled to be represented by assigned counsel in a child neglect proceeding and that, had the appellant stated that she could not afford an attorney, the court would have been "under a duty to advise her of the availability of counsel." But he urges that, since the proceeding is "civil" in nature, the court was not required, on its own initiative, to inform the appellant of her right to have counsel assigned to her.

Tuesday, September 29, 2015

The Apple Valley Model Railroad Club, Hendersonville, NC

Every Saturday, this model railroad club holds an open house for the public. It is a splendid model train layout occupying three rooms. The work is meticulous and the operation of the trains is exciting even to people like us who are not aficionados of the HO scale (narrow gauge) track. 

Visiting the Great Smoky Mountains N.P.

A settler's cabin

Janet on the AT where we took a hike beginning at Newfound Gap

The kitchen is the smaller portion of the house, on the right. The Ogle family (nine children) lived here.

Friday, September 25, 2015

Moving Southward

A long covered bridge constructed with wood pegs in Watson State Park, near Athens, Georgia

Janet (above) and John on the Withlacoochie State Bike Trail, near Floral City, Florida

Jongo Coffee Shop in Henderson, Nor Carolina 

Sunday, September 13, 2015

A sunny day on the Skyline Drive, Virginia

Along the Skyline Drive, Shenandoah National Park

The storm clouds have passed. It's a cool day for hiking. The blue blaze indicates that this trail connects with the Appalachian Trail.

Saturday, September 12, 2015

The Skyline Drive, Virginia, on a cloudy day

Above: the Skyline Drive
Above and below:
The view from our balcony after dinner in the Taproom at Skyland

Friday, September 11, 2015

Western Maryland Rail Trail


We had a tranquil ride through the forest followed by delicious crab cakes at the Weaver Reataurant and Bakery in Hancock, Maryland.

Friday, August 14, 2015

Thoughts about the National Legal Services Program

The “New Vision” of Legal Services

In 1971, we asked a federal court to prevent municipal officials from demolishing a building as a part of the city's urban renewal program. Our complaint was that the government was destroying housing without assuring the tenants of adequate, safe relocation housing and moving expenses. The case was brought as a nation-wide class action, a form of action which provides relief to all the unnamed members of the class and which, previous to the inception of the Legal Services program had rarely, if ever, been used on behalf of poor people. The judge gave us a lecture about politics and the judiciary. Suddenly, he turned to me and asked, "Are you lawyers legal aid or are you that newfangled thing they have?"

The judge was curious about us because prior to the establishment of Legal Services as a part of the War on Poverty in the 1960s, legal aid had had a "charity" perspective of helping poor people with legal matters. This entailed writing a letter or negotiating to assist a poor person but rarely litigating a matter affirmatively. With the establishment of the Legal Services program as part of the Office of Economic Opportunity in the mid-1960s, the Government began funding an agency with a broad mandate to use all of the tools available to lawyers. Besides litigation and lobbying, Legal Services attorneys were encouraged to educate poor people about their rights and to assist them in organizing action groups such as tenants' unions and associations of consumers, prisoners and welfare recipients. And, poverty law became a career option rather than merely a way for new lawyers to learn the ropes.

Lawsuits were encouraged and supported financially to correct many systemic wrongs, such as housing and school segregation, disparities in municipal services, police brutality and inhuman prison conditions. Farmers and corporations which hired migrant laborers came under legal attack. Landlords for the first time were considered merchants of services rather than as lords of the manor. Government agencies that dispense benefits were told by the courts that what they considered generous gifts were property interests to which poor people could claim entitlement and from which recipients could be dispossessed only with elaborate procedural protections.

The theory that welfare benefits should be treated as a property interest under the due process clause of the Constitution was proposed by Charles A. Reich in "The New Property," [73 Yale L. J. 733 (1964)]. The tenor of the times, that welfare could be a constructive force in people's lives, is reflected also in Reich's article "Individual Rights and Social Welfare: The Emerging Legal Issues," [74 Yale L. J. 1245, 1257 (1965)], where Professor Reich writes, "[i]n a constructive alliance of law and social welfare there lies hope for a fundamental change in the status of the disadvantaged in our society - a bill of rights for the disinherited." Indeed, in Goldberg v. Kelly, 397 U.S. 254, 265 (1970), a landmark welfare and due process case, Justice William Brennan, stated:

"Welfare, by meeting the basic demands of subsistence, can help bring within the reach of the poor the same opportunities that are available to others to participate meaningfully in the life of the community... Public assistance, then, is not mere charity, but a means to 'promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity....'"

Governmental agencies and corporations have a great advantage if they can give a litigant what he's asking for and then go on doing the same wrong to hundreds or thousands of other people. So, when poor people's lawyers began bringing class action lawsuits challenging the wrongful conduct of government administrators and corporations, Legal Services' clients were empowered to obtain relief not only for themselves but for others as well. The class action saved many cases from dismissal as moot, and it obtained community-wide, state-wide and nation-wide remedies against many wrongful policies. And where lawsuits were not altogether successful in accomplishing the goals of poor clients, there was legislative and administrative advocacy. Legal Services attorneys were often successful in persuading legislators to change the rules to provide relief from unfair situations which were not amenable to solution by litigation.

Additionally, the Legal Services program encouraged its staff attorneys to get together and strategize in regional and national conferences. There were national back-up centers to help with sophisticated research and co-counseling of large litigation. There was money available for expert witnesses and other litigation expenses. The attorneys, in turn, helped organize people in their communities and provided people with information about their rights concerning health and welfare, landlord-tenant law and consumer law, to name a few areas of Legal Services practice.

Examples of How This Worked:

1. Seeking Decent Housing With The People's Housing Movement

The People's Housing Movement was a joint project of a local Community Action Program and a Legal Services branch office which involved every aspect of Legal Services work as it was understood in the late 1960s - grass roots organizing and lobbying, welfare rights, community legal education, legislative and administrative advocacy, individual and group representation and class action federal litigation. The issues involved slum housing, an urban renewal agency's land use decisions and an agreement between a city and a private developer to exclude welfare recipients from a newly constructed moderate income housing development.

2. Protecting The Privacy Of Homeless Families With A Class Action

This case involved a former summer colony converted for use as a shelter for homeless families. Security guards at this facility would search the cottages from 10:00 p.m. until 2:30 a.m. One guard would search the closets, cabinets, drawers, bathroom and bedrooms while the other remained outside with a guard dog. Children were awakened in the middle of the night and sometimes the dog entered as well and jumped up on a child's bed. If an unauthorized person were found, he would be detained and the family would be summarily expelled from its cottage. The problem called for interviewing many families, informing them of their rights in the circumstances, holding meetings of the tenants, and bringing a class action to terminate the abusive conduct of the owner.

Over the years from 1981 to 1995, Legal Services' funding was cut by 25%, and by 1995, the poor were served by one-third fewer attorneys than in 1981. Then, in 1996, many more Legal Services staff were laid off or quit when Congress cut the program an additional 30% and eliminated all funding for the national back-up centers. The reduction in funding is only one aspect of the degradation of Legal Services for the poor. During the 1980s much of the funding for Legal Services offices no longer came from the national government, but instead, it came more and more from state and local government agencies. The increase in local funding led to greater political control of Legal Services programs. State and local agencies decided whom Legal Services attorneys serve, what work they did and, in some instances, they determined who may be sued with their money. Moreover, there was an intensification of management and bar association control over staff, closure of neighborhood offices, mounting pressure to increase the number of cases opened and closed each year and reluctance to expend money and time on impact litigation.

Here is an example of interference by a funding source. A person who oversees a government funded program made these statements at a meeting with Legal Services advocates:

"Load up on technical assistance, information referral and education. They want to see a lot of numbers. Train as many as you want just don't advocate. There aren't a lot of court cases, we're not aggravating a lot of people."

This official also informed the advocates that the state agency did not want Legal Services attorneys to appear at administrative hearings where they would be in an adversarial position to county officials.

A second example: beginning in the late 1980s, eviction prevention grants from the State Department of Social Services were conditioned on the agreement of a Legal Services office not to sue the state or county Social Services departments with any of the grant funds. Consider also a letter written by an experienced Legal Services attorney to an Assistant Attorney General:

"When Ms. X. went to court she told us she asked about the repairs and the landlord replied he would only repair when she vacated. That needs to be challenged but this office lacks the resources to do it. The best we can do is try to locate suitable housing for our clients."

The 1990s brought a so-called "new vision" to the Legal Services Program. The new policies imposed massive restrictions on what Legal Services attorneys may do for their clients. The restrictions imposed by Congress in 1996, I believe, cut the heart out of the Legal Services program. I will briefly outline them:

No Class Actions [45 Code of Federal Regulations (C.F.R.) Part 1617]

Without class actions, many poor people who are injured by an unlawful practice remain without a remedy. High impact lawsuits are at risk of dismissal when defendants seek to moot the issues presented by giving relief immediately to the person or persons who bring the law suit. By doing so, defendants often seek to continue their illegal conduct with respect to people other than those who brought suit. By immediately giving relief to one or several wronged individuals, defendants reap the benefits and advantages of continuing their illegal conduct with respect to hundreds or thousands of other people. Class actions often avoid this obstacle to justice.

No In-Person Solicitation, No Training Programs Advocating a Particular Public Policy and No Grass Roots Lobbying (45 C.F.R. Parts 1612 and 1638)

In developing cases attacking illegal policies and practices, it is essential for the Legal Services lawyer to solicit clients by, for example, handing out flyers at welfare centers and at other public locations where poor persons are likely to be found and then speaking directly with potential clients concerning their rights. Without in-person informational sessions and on the spot solicitation of clients, much illegal conduct will remain unchallenged. These regulations also prohibit Legal Services attorneys from advocating for particular public policies.

No Legislative Lobbying and No Advocacy to Change Administrative Policies (45 C.F.R. Part 1612)

Much of the work of Legal Services attorneys involves persuading government administrators to alter policies and practices so as to conform their policies to constitutional and statutory requirements. Since advocacy concerning administrative policies is now prohibited, Legal Services attorneys have to rely on litigation to provide protection of the rights of their clients. But Legal Services attorneys are unable to bear such a burden of litigation and the poor suffer the consequences. Moreover, there are laws and polices which injure poor people which are not amenable to solution in the courts, but which might be altered through legislative lobbying by lawyers and by grass roots lobbying.

No Claims for Statutory Attorney's Fees (45 C.F.R. Part 1642)

In addition to denying Legal Services organizations the funds they desperately need to function after the reductions of the past 25 years, this prohibition turns Legal Services attorneys into second class lawyers. They are deprived of an important tool with which to negotiate for the best settlements in lawsuits where a statute gives the prevailing party a right to an award of attorney's fees. The prospect of having to pay substantial attorney's fees is a strong incentive for a defendant to agree to terminate an illegal practice early in a lawsuit rather than to play it out and continue the unlawful conduct as long as possible. A former Legal Services attorney, David S. Udell, gives a devastating example of the effects of this prohibition in "The Legal Services Restrictions: Lawyers in Florida, New York, Virginia and Oregon Describe the Costs," [17 Yale Law and Policy L. Rev. 337, 360 (1998)]. After the Government prohibited Legal Services attorneys from seeking fees, a housing authority brought a frivolous eviction case against a family based on a bogus claim of criminal conduct by the mother. A Legal Services attorney obtained a dismissal of the case, but the lawyer could not seek an attorney's fee even though it was available in principle. The authority brought the same claim a second time and the Legal Services lawyer obtained a second dismissal. Unfortunately, the third time the housing authority sought the family's eviction on the same unfounded basis, the Legal Services office was not available and the family was evicted. Had the attorney's fee restriction not been in effect when Legal Services did represent the family, the housing authority likely would have been required to pay fees to Legal Services. The threat of additional fees most likely would have prevented further harassment of the family.

No Representation of Illegal Aliens (45 C.F.R. Part 1626)

Illegal aliens are entitled to the equal protection of the laws, and they should have lawyers to enforce their rights. Citizen children of illegal aliens may find themselves homeless or without food and clothing because this prohibition cuts off legal assistance to their parents.

No Representation of Prisoners (45 C.F.R. Part 1637)

Prisoners, too, are entitled to the equal protection of the laws and to access to the courts. The prohibition on representing prisoners applies not only to claims concerning the conditions of confinement but to all claims and defenses, including those in domestic relations, consumer and landlord-tenant cases. Thus, if a client is merely arrested and jailed while an eviction proceeding is pending, the Legal Services attorney cannot defend the client in housing court.

No Representation In Eviction Proceedings Brought By A Public Housing Authority Against A Person Accused Of Certain Drug Offenses (45 C.F.R. Part 1633)

Under this restriction, a public housing tenant who has been charged with drug-related conduct is precluded from being represented by a Legal Services attorney regardless of the merits of the accusation.

No Welfare Reform Cases (45 C.F.R. Part 1639)

Litigation to secure subsistence income for poor people lies close to the heart of the mission of Legal Services. The restriction on challenging welfare rules and policies was invalidated by the U.S. Supreme Court in 2001 on first amendment grounds.

I fear we have gone a long way back to the legal aid of earlier times. John McKay, a recent president of the Legal Services Corporation has written about a "new vision" for Legal Services. "Federally Funded Legal Services: a New Vision of Equal Justice Under Law." Tennessee Law Review 68 (2000) pp. 101–18.Mr. McKay embraces the 1996 restrictions and urges that:

"Taken as a whole, the restrictions on the types of cases LSC programs are allowed to handle convey a strong Congressional message: federally funded legal services should focus on individual case representation by providing access to the justice system on a case-by-case basis. Therein lies the key to bipartisan support and the future of federally sponsored legal services."

I cannot agree with this concept of a "New Vision" of legal assistance to poor people in America. The prevailing view of the federal government seems to be that individualized service - handling a poor person's everyday problem - and seeking reforms of systems which injure groups of similarly situated poor people are mutually exclusive alternatives. They are not; they never have been. Indeed, I do not believe that there really is a new vision of Legal Services for the poor. What some call a new vision strikes me as little other than the same myopic vision that opposed zealous and thorough representation of poor people throughout its history.

Moreover, in recent years, there has been an increasing emphasis on counting numbers of cases and giving poor people pieces of legal help rather than full service. Thus, we see increasing resources devoted to brief service, advice, referrals, internet-based information and assisted pro se litigation. While these components of legal assistance can play a useful role, today, systemic injustices, such as segregated housing, due process deficiencies in agency procedures and environmental hazards impacting poor neighborhoods are not likely to be addressed often by lawyers associated with that "newfangled thing."

Sunday, June 21, 2015

Thinking about Poverty and Law - Part 3 - Homelessness and Civil Rights

Homelessness of Families Result in Curtailment of Civil Rights
Before 1981, there was no homeless population in Westchester County, New York where I worked for a Legal Services field program. When a family was evicted or burned out of their home, the family quickly obtained replacement housing. However, with welfare grants not keeping pace with the rising costs of housing during the 1970s, many families were able to pay their rent only by using the portion of their earned income that was exempted by law from consideration in calculating their welfare grants (the first $30 plus one third of the balance of gross income). One of the supposedly cost saving welfare reforms of the early Reagan years was the elimination of this exemption. It was then that we first saw families become homeless. Over the years, rooming houses were eliminated and many single people also lost their only affordable shelter.
The massive numbers of homeless people, including thousands of children brought about a system of so-called “emergency housing,” arranged and supported by the welfare department. In time, the welfare department contracted with corporations to provide “emergency” services to the ever growing numbers of homeless people. The result was a system where due to no fault of their own, many children and adults found themselves in environments where the normal conditions and rights of civil life and society did not apply. Instead, families became subject to strict supervision, a lack of basic privacy and a set of special rules and controls.
Some examples: Homeless families and single people became "licensees" of their accommodations, rather than tenants. As licensees, they could be evicted from emergency apartments and shelters without any of the normal rights of tenants. They could be denied overnight visitors and allowed restricted visitation during the day. They had little or no redress from unsanitary and unsafe housing conditions. They could be required to submit to physical and mental examinations and therapy sessions as determined by case workers and housing managers. Their rooms and apartments were subject to unannounced searches, even during the night, to ensure that there was no unauthorized person on the premises and that they possessed no contraband. Below, I set forth the text of a brief I filed concerning privacy violations in emergency housing.
These and many other restrictions on normal living conditions were rationalized as necessary incidents of the "emergency" situation created by a large homeless population. This was not a temporary dislocation of people caused by a great storm, fire, riot or other massive disturbance. It was a persistent situation that was created by welfare and housing policies and it could have been remedied by governmental policies. But the homeless were for the most part poor people of color and they were not desired in any community's "backyard.”
There is a major problem with fighting for the rights of homeless people to the have normal protections of privacy, freedoms to come and go, rights to protest unhealthy living conditions and to challenge unjust evictions and other arbitrary governmental decisions. That problem stems from the very concept of civil “emergency.” The government used the rubric of “emergency” to justify its curtailment of civil liberties and statutory rights of homeless families. Homeless families might complain that they were being deprived of entitlements, freedom and privacy without “due process of law,” but that constitutional concept is by no means absolute.
Due process and our other constitutional rights depend on the circumstances, on what people demand and on what each of the branches of government say they mean. What protections are available under “due process of law” is determined by balancing the interests of the government against those of the individual. As the Supreme Court stated in Mathews v. Eldridge, 424 U.S. 319, resolution of what process is due requires a “consideration of (i) the nature and weight of the private interest affected by the official action challenged; (ii) the risk of an erroneous deprivation of such interest as a consequence of the summary procedures used; and (iii) the governmental function involved and state interests served by such procedures, as well as the administrative and fiscal burdens, if any, that would result from the substitute procedures sought.”
A state of emergency shifts the resolution of what process is due to the favor of the government, in order for it to reduce or eliminate the emergency. There is severe danger to civil liberties and other rights whenever the government determines that an emergency exists, especially if the emergency is indefinite in duration, widespread geographically and indeterminate in its scope and details. The government can be expected to take advantage of any shifting of the balance between government power and individual rights. The executive branch, especially, will not voluntarily give up whatever powers it can accumulate from the legislative and judicial branches in order to maintain surveillance and control of people. 

Monday, June 1, 2015

Memories of Lebanon


I loved our time some years ago in Lebanon, what an interesting country! Janet and I were relaxed and thoroughly enjoyed the jubilation of a Lebanon which had just about recovered from fifteen years of brutal civil war, a Beirut that had rebuilt and restored its self-confidence and sophistication as the “Paris of the Middle East.” We were welcomed enthusiastically by Janet’s large family on both sides. We visited with her first cousins and their families in Beirut and in villages of the mountains behind Beirut and over the mountains, in the Bekaa Valley. We visited the ruins of Byblos, one of the most ancient cities of the world, the wineries of the Bekaa Valley and the family home in a village in the southern Bakaa Valley. We saw the treasures of Roman architecture at Baalbek, Anjar, Saida and Tyre. What shame that the region is once again torn by strife.

Looking south, over the Litani River in the Bekaa valley.

Jupiter’s Temple at Baalbek, across to the eastern side of the Bekaa Valley.

A delicious home cooked lamb and rice dinner

A cup of strong coffee follows dessert

Some of the family live in Shweir, high above Beirut.

Cousin Adel preparing a Sunday barbeque dinner for the family.

Looking west across the Bakaa Valley from Baalbek; Beirut and the Mediterranean coast is on the other side of the distant mountains.

Hills behind downtown Beirut

 As rebuilding continued, ancient ruins are preserved in the heart of downtown Beirut

Details of a Roman temple at Baalbek where so much is so well preserved.

A memorial of the 15 year civil war by Arman. His 1995 work Hope for Peace is 32 meters in high and contains 83 tanks and vehicles.

Friday, May 22, 2015

Thinking About Poverty and Law -- Part 2 -- Problems of Homeless Families

Hopeless Station, a fictional account based actual cases
The call came in to the Hopeless Motel reception desk at 2:45 p.m., a bomb would go off at precisely 3:30 - “Get them homeless out of there,” was the only further statement of the caller; there was no bomb, but because the caller had first asked for room 308, a family found itself summarily dispossessed the next morning. It didn’t matter to the management that Barbara was a victim of spouse abuse, nor that it was almost certainly her husband who had made the call to make trouble for her. He had been sued by Social Services (DSS) for failing to support his child. He beat Barbara and had threatened their child when she told DSS his whereabouts and signed an affidavit against him for DSS to use in Family Court. The management was concerned only that trouble was brewing and there was enough of that already in the letters to the management and the local newspaper. So, Barbara was ordered out the following morning.
For Barbara and her seven year old daughter Debra, it was back to DSS and on to another motel in another town, on another highway, in another non-neighborhood, amidst fast food restaurants, automobile sales rooms, automobile fumes, bags of clothing and more bags. Barbara was assigned to live with other homeless families at the Bull Moose Motel in upstate New York. She and the other homeless families must hike along a busy corridor to shop for food at a nearby shopping center.
With only a parking lot for a playground, Barbara and Debra faced a summer of heat and boredom. Barbara’s search for a place to live produced nothing but responses of “No welfare” and an occasional offer of an apartment at a rent far beyond what DSS allows. Barbara counted the days until school would start. Registration Day finally arrived. Barbara and Debra arrived a little before 8:30 a.m. at the front door of the Benton McIntyre Elementary School on Monday September 4th. Barbara expected no difficulty, after all, there had been no problem when she registered Debra in school in Hopeless Station. Debra had had a pretty good year there, so why shouldn’t she be able to adjust and do just as well in this new school district.
Mother and child were not prepared for the cold reception and rejection she received from the staff and then the principal at McIntyre. She was told that the school district did not accept motel children, that she was not a resident of the district and so, her child could not attend without payment of the tuition. Debra and her mother returned to their room only with the suggestion that they ask DSS to transport Debra back to her previous school district. DSS agreed to provide transportation, but despite the pleading of Barbara and her DSS caseworker, the previous school district also refused to accept Debra, saying that she was no longer a resident of the district and could not attend without payment of tuition.
Barbara appealed to the state commissioner of education, who issued a temporary emergency order directing the McIntyre school district to admit the child. The following summer, the commissioner issued a regulation which he hoped would solve the homeless problem, directing that homeless children have a choice of continuing in the school where they became homeless or attending school in the district where the motel or shelter is located. For Debra, this worked out well, but for many children living in motels far distant from their old schools and friends, it has meant a ride of an hour or even two hours by taxi or special bus each way, thus excluding all after-school activities.

Tuesday, May 19, 2015

Thinking About Poverty and Law - Part 1

Things may have changed since I wrote this but maybe not for the better. Here is a fragment of my writing on Legal Services and poverty in New York State

The Roberts family hadn’t given the motel manager, Kenberg, any reason to call their caseworker at the department of social services, not for over a year, but on their way back from shopping, an onion dropped unnoticed in the hallway, and a security guard found it on his 6 p.m. tour of the halls. He sniffed at each door on the floor, and coming upon a telltale odor of frying onions, he knocked hard, then waited only a moment before bursting in, so the family would not be able to hide the evidence. Ben waved to his boys to stash the plates under the bed. A mad scramble ensued but was not fast enough. The frying pan stuffed under the bed did nothing to hide the smoke and smell of the onions and hamburger. “Too late, Roberts, we been watching you, your kids dropped an onion in the hall, you're all history here, tomorrow morning, you're  outta here. Now give me the stuff, your pan, your hot plate, you can go to jail, you know for cooking here.” “My kids gotta eat, don’t they, they gotta eat....” Don’t you cook for your kids?” “Speak to Mr. Kenberg in the morning, first thing in the morning, I got my orders, nothin’ I can do ‘bout it;” the door closed.

“Dad? What about school tomorrow? We gonna miss school again like when got homeless? I got a test in geometry.” Don’t worry, Mark, just go on to school like nothin’s wrong. I’m gonna speak to the manager in the morning, maybe he’ll let us stay, he’s got to.” “Can we eat the burgers, Dad, or are they gonna come back and take them too?” “Take it easy Steve, turn on the TV.”

“Mr. Kenberg, I been here over a year, no fights, no drugs, nothin’. I got three kids in school, all doing good, you can’t kick us out ‘til school’s out, please, I don’t know where they’ll put us, might be far away or back in a hole in Yonkers, I can’t miss work, please, just give me a break, once.” “I can’t keep you, just can’t do it Ben. You and your kids made no trouble here, but I told yah, I told yah lots a times, the town wants me closed down, the fire people are over here every other day looking around to close me down. They don’t want no homeless here. It’s gettin’ hard as hell to run this place. You gotta go, sorry Ben, you gotta get down to welfare right away, with all your stuff, down to welfare this morning. Check-out’s at eleven. I’ll call the worker for you if you want.”

I had to hand it to Roberts, sending me a fax from a neighborhood store was ingenious. He explained later that getting through the host of intake workers at our office was if anything more challenging than getting in to see an emergency worker at the DSS office. It hadn’t always been that way at our shop, but I had to agree, it was so nowadays. Anyway, Roberts’s fax was brought to me without going through ”intake screening,” lucky for him. I asked him how he got our fax number: “Simple, I asked at the police station next door to the welfare office.” Roberts explained that he would lose his job if he had to spend all day at the welfare office. It was already pretty late in the morning when he had arrived there, having to take a bus from the motel all the way to the Yonkers district office of DSS.
He had called in to his job, but they told him he had already taken off too much time. He said he couldn’t tell them what was going on; he had to get to work by 1 p.m. or he would surely lose the job. He said he had to come down to welfare almost once a month for some damn thing and often had to spend the whole day, the usual story. He just couldn’t do so today. Yet, he had no place to sleep that night, and welfare was getting on his case for having gotten himself evicted from the motel. Apparently, they were letting motel and hotel evictees sit around until they finished with new applicants with emergency problems and newly homeless families that had just been evicted from “permanent” housing. A caseworker who did an initial intake on Roberts told him that she didn’t know but what he would be given low priority and placed out-of-county because he had gotten himself into trouble by violating the “no cooking” rule.

When I called the supervisor, Ms. Bonloch to stress my client’s need to stay in the area in order to retain his employment, her response was a curt refusal to interfere with the worker’s judgment call. Her view was that there were more deserving people for the limited slots available in-county. My only hope of getting him accommodations reasonably near his job was to act boldly and quickly. I sent a fax to the district director stating that out-of-county placement was not only arbitrary in the circumstances of this case, it would be contrary to the policy of the State DSS, which mandates emergency placements in or as near as possible to the homeless family's original residence. I then told Roberts to call me again in a half hour if he hadn’t been given a new placement within commuting distance to his job. I got no further call from him that day.

When Ben Roberts did call me back, three days later, he said the DSS worker had given him an “emergency apartment” in the New Rochelle, close enough for him to get to work by bus. Ben Roberts said he and the boys were very happy with their new place with its kitchen and two bedrooms. He thanked me for my intervention and said he was sure that if I hadn’t been involved, he would have been sent far away. He then told me that he had received a notice of reduction of his grant from DSS. I suggested where a fax could be sent to me at no cost, and a few hours later, I found Roberts’ reduction notice in my mailbox.

On its face, the reduction notice was routine and correct, simply adjusting the amount of public assistance to reflect Roberts’ recent pay increase, which he had duly reported. The facts stated in the notice were correct, the math was correct, and the regulations called for the result: Roberts was being asked to make a monthly payment for his apartment that exceeded his entire net take-home pay of 1143.32 a month. The absurdity of Roberts’ situation struck me as comical. I stared at the paper for some time before filling out a form request for a fair hearing to send to the State DSS. I faxed the request as it was the last day to do so to keep the grant unreduced pending a decision after a “fair hearing.”

In preparing for the hearing, I wanted to see this apartment for which my client was being billed $1239.58 a month. Ben Roberts’ broad smile didn’t square with what I viewed on entering his new place, but I understood full well that almost anything beats living in a single motel room with three children for over a year. The apartment turned out to have two small bedrooms; the refrigerator door was broken, two of four burners and the oven were inoperable, the paint was badly peeling from the walls and a huge colony of cockroaches crawled the walls even in daylight. The intercom didn’t work, there was no smoke alarm, the lock on the front door to the building hung down by one loose screw and the mailboxes were in bad shape. Those were the most obvious problems. This was supposed to be a model emergency apartment sponsored by DSS and one of the many do-good non-profit organizations set up supposedly to assist homeless families.

I asked Ben if he had been given any choice of where he would be staying, “No,” he was not asked or shown the apartment in advance. He was assigned to live there. While I was in the building, I asked Mr. Roberts to take me around to find out what some of the other tenants were paying for similar apartments. Our inquiries disclosed that comparable apartment were renting for $750 to $850 a month, some in better condition than his. I asked Roberts for the paper he signed when he took possession of the apartment; it turned out to be something called a “license,” a document which explicitly told Roberts that he had none of the rights of a tenant, but did have the duty to pay for his accommodations. When Roberts complained to the Building Inspector about the conditions in his apartment, he was told that the inspectors do not inspect premises leased under the DSS emergency assistance program - that DSS was responsible for ensuring compliance with the housing code.
At the hearing, to which Ben invited the press, we argued that the demand that Roberts pay over $1200 a month for an apartment such poor condition is unconscionable, that the license agreement is unconscionable and an attempt to evade the landlord’s responsibilities to provide a habitable apartment, that Roberts was being gouged for rent far above that which other tenants were paying and finally, we demonstrated the impossibility of what DSS was asking him to pay. There never was a decision after this hearing, for the matter became moot when a civic organization found an apartment which the Roberts family was able to afford - as a direct result of the publicity engendered by the hearing.