"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.

Here is a link to my remarks at the Ella B Reception during the conference.
https://www.ils.ny.gov/files/videos/Joanne's%20Video%20Remix%201.mp4

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Reflections on Because All Families Matter: Enhancing Parental Defense in New York

Angela Olivia Burton, Esq.

Director of Quality Enhancement, Parent Representation

New York State Office of Indigent Legal Services

12/11/2015

"Unprecedented." "Tremendously useful." "So energizing!" "This has been rejuvenating; I was thinking about retiring soon, but this experience has changed all that!" "Incredibly needed - I'm looking forward to next year!"

These are comments expressed by some attendees at the first ever statewide conference and training devoted to parental defense -- Because All Families Matter: Enhancing Parental Defense in New York.  Over the course of two days, November 13 and 14, 2015, in Albany, New York, the excitement and energy were palpable as nearly 200 people came together to discuss critical issues and trends in this under-appreciated yet extremely important area of practice.    

An initiative of the NYS Office of Indigent Legal Services (ILS), with the indispensable co-sponsorship of the New York State Defenders Association (NYSDA) and the NYS Child Welfare Court Improvement Project (CIP), the conference drew participants and presenters from 32 New York counties, representing each of the state's four Judicial Departments.  As one participant noted, this was truly an unprecedented event in New York State.

The attendees were presented with an array of CLE options addressing cutting edge and provocative issues arising child protective cases.  Each session was highly interactive, with information flowing freely between and among the presenters and the audience.  In addition to opportunities for participants to network and forge new relationships, the conference yielded a wealth of practical advice, background material to enhance critical and creative thinking, and a treasure trove of written materials ready for use in everyday practice. Thanks to the expert logistical magic of NYSDA, the program, speaker's list, and conference materials are accessible here: http://nyparentdefense.com/.

Several highlights deserve special note.  On Friday afternoon, the conference started with rousing motivational remarks from keynote speaker Prof. Marty Guggenheim, co-director (with Prof. Chris Gottlieb) of the Family Defense Clinic at the NYU School of Law, a founding member of the ABA’s Steering Committee for the Parental Representation Project (http://www.americanbar.org/groups/child_law/what_we_do/projects/parentrepresentation.html), and a leader in the national movement for excellent legal representation for parents. Among his many notable accomplishments, Marty argued the 1982 case of Santosky v. Kramer, in which the US Supreme Court rejected New York's "fair preponderance" standard in termination of parental rights cases, holding that due process requires at least clear and convincing evidence in those cases.  The Santosky court famously noted that parents' fundamental liberty interest in raising their children "does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State . . . parents retain a vital interest in preventing the irretrievable destruction of their family life."  Marty's chapter, "The Importance of Family Defense," from the just-released ABA publication Representing Parents in Child Welfare Cases:  Advice and Guidance for Family Defenders (co-edited with Prof. Vivek Sankaren), is posted on the conference website here:http://nyparentdefense.com/conference-materials/. Thanks to a discount provided by the ABA and the financial support of the CIP, 100 lucky conference attendees will shortly receive a free copy of the book!  NYSDA will be in touch.  For anyone interested, here's a link to information about the book and how to order it: http://shop.americanbar.org/eBus/Store/ProductDetails.aspx?productId=224751148.  According to a recent post on the ABA Parent Attorney listserve by Prof. Sankaren, all proceeds from the book will be donated to the ABA's Parent Representation Project. 

Friday evening conference attendees gathered for tasty treats, beverages and networking at the Ella B. reception, held in honor of attorney John T. Hand, who briefed and argued that groundbreaking case.  In 1972, in In re Ella B., the NY Court of Appeals, in 1972, established that parents have a constitutional right to publicly funded assigned counsel in neglect and abuse cases (which, as discussed below, led to the enactment of Family Court §262 in 1975).  At that time, John was an attorney with the Legal Aid Society of Westchester County in White Plains, where he and his colleagues brought numerous challenges against the government in cases involving such issues as housing, public benefits, and the right to counsel. John, now retired from practice in New York State, is an active member of the Massachusetts Bar, and a volunteer attorney preparing cases for victims of torture seeking political asylum.  And rumor has it that yes, John is a distant relative of the famed Learned Hand! Thanks to the steady hand of Joanne Macri, ILS Regional Initiatives Director and impromptu videographer, you can see John's remarks here:https://www.ils.ny.gov/files/videos/Joanne's Video Remix 1.mp4, and his reflections about the Ella B. reception and his involvement in the case are posted on his blog, here: http://john-hand.blogspot.com/2015/11/because-families-matter-amazing-moment_15.html.

Other highlights: acclaimed neuroscientist Dr. Carl Hart on how scientists have contributed to dangerous misconceptions about the nature of drug use and addiction, and how these views contribute to injustice in child protective cases, and a joint presentation by Bronx Family Court Judge Gayle Roberts and Seton Hall Law School Professor Solangel Maldonado on the research into implicit bias, its effects on judicial-decision making, and practical advice on how we can counteract its negative effects. 

In addition to the too-numerous-to-mention-here-but-incredible New York family defense practitioners who generously shared their expertise (http://nyparentdefense.com/speakers/), we were fortunate to have participation on panels by Betsy Ruslander, Director, 3rd Dep't Office of the Attorney for the Child (The Parent's Attorney and the Attorney for the Child: Defining Roles, Resolving Misunderstandings); Aimee Neri, Liaison, NYS Child Welfare Court Improvement Project and Rachel Blustain, Executive Director, Rise Magazine (Strengthening Communication with Clients in a Client-Centered Practice); and Dylan Nicole de Kervor, Attorney, Federal Coordination and Compliance Section (FCS), U.S. Department of Justice, Civil Rights Division (State Intrusion in the Family in the Age of Ferguson: Child Welfare as a Civil Rights Issue).

This extraordinary gathering marked several important historical anniversaries in the evolution of the right to assigned counsel for parents in New York.  As noted above, forty years ago, in 1975, the constitutional right to publicly-funded counsel for adults in child protective cases was codified in the Family Court Act, following on the heels of the NY Court of Appeals decision three years earlier in In re Ella B., 30 NY2d 352 (1972). Echoing Mr. John Hand's brilliant argument, the Court emphasized the fundamental, constitutionally protected liberty interest of parents in raising their children, and noted the “gross inherent imbalance of experience and expertise” between the state and unrepresented parents. The Court held that it was “fundamentally unfair, and a denial of due process of law for the state to seek removal of a child from an indigent parent without according that parent the right to the assistance of court-appointed and compensated counsel.” Thus began New York's system of assigned counsel in family court cases involving "infringements of fundamental interests and rights, including the loss of a child's society and the possibility of criminal charges." FCA §261.  Notably, as he mentioned in his speech at the reception,, Attorney Hand also successfully litigated People ex rel. Amendola v. Jackson, 74 Misc.2d 797 (1973), in which the constitutional right to assigned counsel for indigent parents charged with willful violation of a child support order in Family Court was announced (and codified in FCA §262 two years later along with the right to counsel in neglect and abuse proceedings). 

The conference marked another significant event: 25 years ago, in 1990, a consolidated bill package was enacted by the NYS legislature addressing several child welfare related issues (https://www.ncjrs.gov/pdffiles1/Digitization/129495NCJRS.pdf). Included in this legislation were reforms to the Family Court Act arising out of a study funded by the National Center on Child Abuse and Neglect, Children's Bureau, Administration for Children, Youth and Families, U.S. Dep't of Health and Human Services. The study, entitled Child Protection and the Family Court: A Study of Processes, Procedures and Outcomes under Article Ten of the New York Family Court Act, was conducted under the auspices of the NYS Senate Standing Committee on Child Care, chaired by Senator Mary Goodhue (the "Goodhue Committee"). This remarkable document (accessible here: https://www.ncjrs.gov/pdffiles1/Digitization/126665NCJRS.pdf) analyzes data collected from 500 court case records, across 14 counties, of child protective proceedings initiated in 1985.  Information about each case was collected before, during and after family court intervention (until the fall of 1988).  In its report, issued in 1989, the Goodhue Committee identified significant flaws in the system for parental representation.

The Committee observed that "a number of highly significant events occur prior to the initial appearance and prior to the initial appointment of representation for the respondent.  All of these events occur on an ex partebasis and many of the events are of a magnitude to shake the family structure of the respondent." Notably, the Committee found that FCA §1027 hearings, "intended to be preliminary procedures to determine whether imminent risk to a child's life or health exist so as to warrant court-ordered removal of the child from the home" were often "a vehicle to validate earlier pre-petition removals of children" without court order under FCA §1024. The Committee made other significant findings, including that: respondents were often not present at these critical hearings (akin to arraignment in criminal court); when present, respondents often were not represented by counsel; many respondents were not advised by the judge of their right to counsel or their FCA§1028 right to apply for return of the child; that the rate of filing for FCA §1028 hearings was "extremely low in the State as a whole;" and that "counsel was not appointed in more than 30 percent of the cases (even after accounting for the use of private attorneys)."  "All these matters," wrote the Committee, "raise serious due process concerns." 

Concluding that "[t]hese findings suggest that competent legal representation be available [to respondents] at the early and critical stages of these proceedings," the Goodhue Committee recommended that a notice be included in the child protective petition or notice of pre-petition emergency removal advising respondents of their right to assigned counsel, methods of gaining access to counsel, and of the FCA §1028 right to apply for return of the child. The Committee also recommended that "legislation be enacted to establish timeframes for the appointment of counsel, when requested by respondents, as soon as practicable after the filing of the petition." The notice provisions were enacted in the 1990 reform package.  However, no specific timeframes for appointment of counsel to respondents were established; the statute only required that, when the person first comes to court, the judge advise the person before proceeding of the right to assigned counsel. FCA §262(a).  Notably, as part of the 1990 reforms, specific timeframes for appointment of counsel for the child was enacted, requiring the judge to appoint counsel for the child at the earliest of: (i) the court receiving notice of the emergency removal of a child; (ii) an application for an ex parte order of removal before the filing of a petition; or (iii) the filing of a petition alleging abuse or neglect.  FCA §1016. 

Finally, 2015 marks the 15-year anniversary of the filing, in 2000 of the lawsuit challenging the inadequate assigned counsel rates, New York County Lawyers' Association v. The State of New York and the City of New York https://www.nycla.org/siteFiles/Publications/18bcomplaint.pdf). The complaint alleged that the then existing assigned counsel rates ($40.00 per hour for in-court and $25.00 per hour for out of court work) resulted in an unconstitutional denial of meaningful and effective legal representation for children and indigent adults in criminal and family court cases as required by the constitutions of New York State and the United States. In 2003 Supreme Court Judge Lucindo Suarez agreed, finding that "[t]he State of New York continues to ignore its constitutional obligation to the poor by failing to increase the assigned counsel rates, resulting, "in many cases, in denial of counsel, delay in the appointment of counsel, and less than meaningful and effective legal representation." (http://www.sado.org/fees/newyorkfeecase.pdf). Judge Suarez noted the "severe and irreparable harm" caused by delays in appointment of counsel in Family Court cases, including: no representation during critical periods where due process rights to liberty and care for children were at stake; children being removed from parents’ custody at ex parte hearings where they were unrepresented; and parents not receiving timely FCA §1028 hearings. Observing the family court judge's role of insuring "that the state agency is not over-reaching," the court found that parents were losing custody of their children for long periods of time "with inadequate judicial assessment of whether the removal is warranted. . . As a result, parents are “deprived of an opportunity to have a relationship with their child, and the child is deprived of an ability to have a relationship with their parent.”

Because All Families Matter: Enhancing Parental Defense in New York is another historical marker in the evolution of the parental right to counsel in New York, and has set the stage for a new direction in family defense in New York State. Timely access by parents to well-resourced, high quality legal representation is crucial to achieving procedural and social justice for families. We at ILS look forward to continued collaboration with partners such as NYSDA, CIP, the community of New York family defenders, and others seeking to improve the quality of legal representation for all families involved with the child welfare system in New York.

Happy holidays, and take good care,

aob

Angela Olivia Burton, Esq.

Director of Quality Enhancement, Parent Representation

New York State Office of Indigent Legal Services

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MATTER OF ELLA B.

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.

Judges BURKE, SCILEPPI, BERGAN, BREITEL, JASEN and GIBSON concur.

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.

Footnotes

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.

Damascus Virginia continued.

O

The Virginia Creeper Bike Path

Damascus, VA, is certainly a trail town.

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.

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 

On and about the Blue Ridge Parkway

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.

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

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.

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."

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.