Working at a Legal Services Office
Andrew L. Levy, Esq.
Andrew Levy was my mentor and friend at the Legal Aid Society of Westchester County. He died in April, 1999. He was a fighter for justice and a man with a wry sense of humor.
On a cold, windy night in January, Andy Levy defended a family in an eviction proceeding in a town court in which Andy had requested a jury trial. His opponent represented a landlord who was one of the more powerful land developers in Westchester County. The courtroom was packed with the jury pool and the questioning began. The landlord's attorney inexplicably referred to the snowstorm in progress and asked the prospective jurors whether they could vote for eviction if it meant throwing the entire family out into the snow. As a result, juror after juror was excused. Finally, there were not enough veniremen and women left in the room to constitute a jury of six persons. The landlord in utter frustration abandoned the case. I wonder how much he paid that lawyer.
How the Mighty are Frozen Out
It’s cold, snowing, blowing,Jury’s puzzled, tired, troubled,
Case gone, jury lacking.
Below: The Legal Aid office between White Plains and Elmsford, NY; Andy Levy at right
Andy sometimes referred to the local attorneys in the village and town courts as "Stars of the Bar." Andy’s “stahhs of the baahr” were chiefly those landlords' attorneys one sees regularly in local court strutting around as if they owned the place – and in some cases they probably do. Andy knew procedure very well and used it effectively to keep poor families housed.
Stars of the Bar
Stars of the Bar, watch out!
Attorney Levy’s on the case;
Can they fight one more bout?
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In McKenna v. Peekskill Housing Authority, 647 F.2d 332, Andy's client was threatened with eviction for violating the Authority’s rule on overnight visitors. The U. S. Court of Appeals for the Second Circuit invalidated the rule on first amendment grounds. But prior to argument of the appeal, the Court’s counsel attempted to bulldoze Andy into dropping the appeal from the decision dismissing the case; Andy “didn’t have a chance on this one,” said the heavyweight; and, if Andy gave in, said the mediator, the Authority would let her stay and the losing decision could be vacated by stipulation.
The McKenna Case
Her guest stayed overnight
You must leave, Tenant McKenna!
He fought with all his might.
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AFDC
Aid to Families with Dependent Children was not a failure as some have said. AFDC served the country quite well for many decades, beginning during the Great Depression. It could have been improved, but instead, it was eroded by Reagan and then eliminated by Gingrich-Clinton. The removal of that program was part of a package of so-called reforms which injured poor people and diminished our civil rights and liberties. AFDC was was more than a charitable hand-out to poor children and their parents. Although it bestowed no right to receive any particular amount of assistance, whatever was determined to be appropriate was an entitlement. Assistance could not be denied in an arbitrary manner. A family's benefits, once granted, were protected procedurally by the due process clause of the Fourteenth Amendment of the U.S. Constitution. In the Supreme Court case which announced that right, Justice William Brennan said,
"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...." Goldberg v. Kelly, 397 U.S. 254, 265 (1970).
AFDC contained strict work rules which were enforced. And, many welfare mothers were able to keep their apartments when grant levels failed to rise with inflation in the 1970s by working, because, at that time, working parents were allowed to keep a portion of their earned income. Reagan eliminated that partial exemption, resulting in thousands of families becoming homeless. The elimination of AFDC in 1996 removed the national safety net for poor children.
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Homelessness as a state of emergency and due process
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 the people.
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A Few More Thoughts About Hostilities Of Indefinite Duration:
The “war on terror” is a war of indefinite duration. As there will likely always be people who hate and terrorize others, this is a war that could go on without end. It is a concept that can easily be used to justify on-going intrusions into citizens’ privacy and other freedoms. Indeed, it is not beyond reason that in time, we could become like the country described in this paragraph from a Human Rights Watch report:
"[The president] continued to proclaim his commitment to democratization, including to hold elections, but in the meantime his government proclaimed a state of emergency throughout most of the country which placed sweeping powers over justice and the civilian administration in the hands of the military. A military court, which superseded civilian courts, conducted trials without due process guarantees and imposed death sentences on political suspects and criminals, some of whom were executed immediately, without the possibility of appeal.... [E]xcessive registration requirements for political parties effectively excluded many of them from participation in the political process. Arrests of civilians and leading politicians increased...." (Excerpt from "Casualties Of War: Civilians, Rule of Law, and Democratic Freedoms," a report of Human Rights Watch, Introduction, Vol 11, No. 1(A), February, 1999, concerning the D.R. of the Congo, found at: http://hrw.org/reports/1999/congo/).
These quotations are worth keeping in mind as we extend the Patriot Act and other responses to the “war” on terrorism that are supposed to keep us safe:
"…[F]ew indeed have been the invasions upon essential liberties which
have not been accompanied by pleas of urgent necessity advanced in
good faith by responsible men." Justice Frank Murphy, concurring,
Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 113 (1943)
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"Of all the enemies to public liberty war is, perhaps, the most to be
dreaded because it comprises and develops the germ of every other. War
is the parent of armies; from these proceed debts and taxes … known
instruments for bringing the many under the domination of the few.… No
nation could preserve its freedom in the midst of continual warfare."
— James Madison, Political Observations, 1795
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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."
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Selected cases in which I participated
Male v. Crossroads Associates, 469 F.2d 616 (2nd Cir. 1972)(The court ruled that an ostensibly private developer who built middle-income housing as part of an urban renewal plan was a "state actor" and that his policy of refusing to rent apartments to welfare recipients violated their rights under the 14th Amendment of the U.S. Constitution.). This case arose out of meetings of community people who were concerned about the lack of decent housing for poor people in Peekskill, N.Y.).
This case arose from community development work which we did in the late 1960s in the Peekskill office of the Legal Aid Society. Working with the local Community Action Program, we established the Peoples’ Housing Movement with the goal of moving people into better housing and getting the City to better enforce its housing code. The PHM held meetings and from those meetings in 1969 and 1970 this case arose. Some families lived in shacks without plumbing. For example, here is a shack of a client family in Peeksill, NY that the "City Fathers" don't want you to see or know about.
This case arose from community development work which we did in the late 1960s in the Peekskill office of the Legal Aid Society. Working with the local Community Action Program, we established the Peoples’ Housing Movement with the goal of moving people into better housing and getting the City to better enforce its housing code. The PHM held meetings and from those meetings in 1969 and 1970 this case arose. Some families lived in shacks without plumbing. For example, here is a shack of a client family in Peeksill, NY that the "City Fathers" don't want you to see or know about.
Shack in Peekskill, NY, down by the Hudson River.
The Crossroads suit was bitterly fought. We lost the initial round when we asked for a preliminary injunction. Shortly after the suit was filed, the City Manager appeared in the office of a business man who sat on our board of directors. The story goes that when the man from Peekskill began to complain about our lawsuit, our board member just “threw him out of the office.” He later reported to the Board that he told the City Manager that he was very proud of the work that we were doing.
I remember the huge courtroom in Foley Square, Manhattan, where motions were heard. Judge Inzer B. Wyatt, from Alabama, sat alone behind a bench at least 25 feet wide and elevated above us. We asked him whether we might submit a supplemental memo on some point, and Judge Wyatt, leaning back and observing the mile high ceiling intoned, “Yes, I can use all the help I can get.” He said those simple words with great dignity and sincerity. We persevered, through many depositions and sets of interrogatories, gathering affidavits and finally survived summary judgment with the City and prevailed against the defendant developer, who thought he could discriminate against welfare recipients in his housing complex with impunity. It was Judge Charles H. Tenney who granted the final judgment in the case which enjoined the developer from continuing to discriminate against welfare recipients in its housing complex. In the end, a number of families were able to move into the Crossroads, because in those days, the welfare department was granting extra amounts of rent to families on a regular basis in order to prevent homelessness. These were the good times, when the Legal Services Program encouraged community action and hard-slugging zealous legal advocacy.
McKenna v. Peekskill Housing Authority, 647 F.2d 332 (2nd Cir. 1981)(Requirement that tenant obtain prior permission from the project manager to have an overnight guest violates the First Amendment of the U.S. Constitution). Can you imagine renting an apartment as an adult and having to ask the management permission to have a guest stay overnight. One of the plaintiffs in this action was threatened with eviction even for allowing a relative to stay overnight during a snowstorm, since she had not asked for permission in advance for the sleepover! About ten years before this action was brought by Andy Levy and myself, we had had earlier problems of this nature. In one eviction case, the Peekskill Housing Authority wanted to throw a single mother and her child out of the building because her boyfriend had stayed over a night. I interposed a demand for a bill of particulars in the proceeding. It was never answered, and, I suppose the matter is still pending to this day!
Jefferies v. Sugarman, 345 F.Supp. 172 (S.D.N.Y. 1972), vacated, 420 U.S. 916, after remand, 481 F.2d 414 (2nd Cir. 1973)(Challenge to New York's welfare rules that prohibited recipients from attending a 4-year college program while receiving benefits; case was settled protecting recipients from arbitrary exclusion from benefits. Our clients obtained baccalaureate degrees and went on to supervisory positions in services agencies, including the county welfare department).
One of the plaintiffs in this class action lawsuit went on to become a supervisor at the welfare department, and later, she directed a community health center. This case went to the U.S. Supreme Court but it was summarily decided. It was a fascinating case and my first argument before a three-judge district court. In those days, when a case challenged a state statute on constitutional grounds, it was heard before a court of three judges, one of whom was a circuit court judge – in this case, Judge Hays. I recall seeing him after the argument as he left for lunch, on the steps of the courthouse, wearing a straw hat. The case went on for a long time and many women got their degrees as a result of it.
Barnes v. Tarrytown Urban Renewal Agency, 338 F.Supp. 257 (S.D.N.Y. 1971), 338 F. Supp. 262 and 351 F.Supp. 455 (S.D.N.Y.1972)(The U.S. Department of Housing and Urban Development unlawfully failed to implement the federal Relocation Act of 1970 thus depriving our clients and a nationwide class of similarly situated urban renewal relocatees of important financial and housing benefits.).
The class action was very important to poverty lawyers like us. Most of our major cases were brought as class actions because we needed relief for lots of people, not just the named plaintiffs when issues of public importance were at stake. The government defendants often use a strategy of giving people who bring suits what they want so that they, the government officials, can go on doing the same bad things to lots of other people. With class actions, they can be stopped on a class-wide basis. Sometimes, judges would say you do not need a class since if we rule for one, the precedent will be followed by the government for everyone else. But it does not really work that way. The government is supposed to follow the rulings of courts but often the officials do not in order to do as they like – whether to save money illegally and look good or to advance themselves in another way. (The cases I worked on taught me that people who work for the government at all levels are no more and no less honest than other business people; unfortunately, they are often regarded as honest and correct simply by virtue of their office or uniform). Class actions save cases from becoming moot when the government gives the named plaintiff(s) relief. In this case, Ollie Barnes was threatened with eviction when the Housing Authority wanted to tear down her building for “urban renewal,” sometimes called, “black removal.” When people lost their homes due to urban renewal, they were supposed to get relocation assistance to find another home. But the Town of Tarrytown was not obeying that federal law. We sued. We went to the federal district court in Manhattan to ask for temporary restraining order to stop Mrs. Barnes’ threatened eviction. The judge in the emergency part that day was Sylvester Ryan, a Roosevelt appointee (he let us know). I argued our position and he turned to me and said, “Are you regular legal aid or that new fangled thing they have?” I was nonplussed at this and do not remember what I said. He granted the order we were seeking. Eventually, the class was certified and we obtained injunctive relief for the class against the U.S. Department of Housing and Urban Renewal.
Scott v. Peekskill Housing Authority, 313 N.Y.S.2d 220, 35 A.D.2d 554, affirmed, 35 N.Y.2d 554, 320 N.Y.S.2d 74 (1970)(After a warrant of eviction for non-payment of rent, it was not arbitrary for the Authority to insist on tenant's eviction, even where she had the money to pay the judgment and the welfare department had arranged to make future payments directly to the Authority).
Judge Benjamin of the Appellate Division in Brooklyn was the lone dissenter in the 4-1 decision denying relief to my client from an order of eviction from her apartment in public housing. Judge Benjamin agreed with me that it is arbitrary to throw a poor family in the street for non-payment of rent when the family received the back money from the welfare department and agreed to have their rent paid directly to the housing authority in the future. Ms. Scott also agreed to attend a home-making course as well. In those days, a losing litigant had a right to take his or her appeal to New York’s highest court, the N.Y. Court of Appeals in Albany if there was at least one dissent in the lower appellate court, which is called the Appellate Division, so my first appeal went “all the way.” I was pretty nervous arguing before the seven judges of the Court of Appeals. Appeals are heard in a most handsome courtroom, more beautiful than any other in which I have been. But the appeal was unsuccessful. Even during the argument, I was dismayed to observe Judge Breitel (who later became Chief Judge) swing his high-backed chair around and look out of the window. Chief Judge Fuld was polite but suggested that they had heard enough soon thereafter. Nevertheless, I was satisfied that I put sound, strong arguments before the Court.
Matter of Ella B, 30 N.Y.2d 352, 134 N.Y.S.2d 133 (1972)(In a case of first impression, the Court of Appeals ruled that indigent parents have a constitutional right to assigned counsel in a child neglect proceeding).
The moments that one remembers all his or her life are not necessarily the moments that another would say are that earth-shattering. For me, there are a number of simple events that stand out. One of those moments was in early January, 1972, when I came into the office at Legal Aid on a Saturday and found in the mail a thin envelope from the New York Court of Appeals. I sat and looked at that envelope for the longest time – and then, slowly opened it. When I saw the word, “GRANTED,” I felt a surge of joy and excitement. The Court had allowed my request to appeal an order of the Appellate Division denying Mrs. B’s claim that she had been denied her due process rights under the 14th Amendment of the United States Constitution. She had not been afforded free counsel in the Family Court when that court found her to be neglectful and deprived her of her child. I worked from that moment for 60 days nearly non-stop and poor Mrs. Reilly had the job of typing the many drafts of the 55 page brief I wrote and rewrote. This was in the days before computerized typing. Unlike my sad defeat in the Scott case, this time, as I argued before the seven judges, their interest was clear to me; I was not told to sit down. One day about a month after the argument someone called out, “Mr. Hand, Judge Fuld is on the line for you.” That’s pretty unusual and I wondered what he could possibly be calling me about. He needed a paper I had mentioned during the argument. The decision reversing the Appellate Division and finding a constitutional right of parents to free counsel in child neglect proceedings came soon afterwards.
Newton v. Municipal Housing Authority for the City of Yonkers, 72 Misc.2d 633, 340 N.Y.S.2d 89 (Sup. Ct. West. Co. 1973) after remand, 38 N.Y.2d 220, 379 N.Y.S.2d 688 (1976) (A notice of an administrative hearing concerning a tenant's alleged failure to report certain income failed to provide adequate notice in accordance with the requirements of due process of law. Eventually, however, the appeals court ruled in a 4 to 3 decision that the tenant was properly evicted even though there was no claim or evidence that the tenant's conduct interfered with the operation of the authority or resulted in any actual prejudice to it.
Bennett v. Jeffreys, 40 N.Y.2d 543, 387 N.Y.S.2d 821 (1976)(The Court held that even in the absence of abandonment, surrender and parental unfitness, extraordinary circumstances justify utilizing the "best interests" test in determining a custody contest between a parent and a non-parent who cared for the child for a lengthy period (7 years)).
This case involved a mother seeking to regain custody of her child from a neighbor to whom she had entrusted her infant when she, the mother, was unable to care for her baby. Six years passed and when mom sought to regain possession of her daughter, the neighbor refused to hand her over. I argued the case in the Appellate Division, and my argument was solid, passionate and well founded in the law. As I walked out of the crowded courtroom after the argument, an older lawyer remarked how well I had done. That made me feel good, I must say. I won that appeal, but the Court of Appeals, on further review, sent the case back for a new trial. At the retrial, the mother’s case eroded, so, in the end, the neighbor got to keep the child. The case became a landmark precedent in the area of custody law.
Harbolic v. Berger, 43 N.Y.2d 102, 400 N.Y.S.2d 780 (1977)(The court invalidated a welfare regulation which limited work expense deductions to $80 in calculating public assistance).
In the “old days,” welfare calculations were based on the principle of “available income and assets.” Money could not be ascribed to a family so as to reduce or eliminate eligibility for welfare benefits unless the money was “actually available” to the family. Thus, welfare budgets were based on net income from employment, not gross income. All mandatory deductions from gross salary were disregarded in determining how much the family would get each month from the state. This made sense since welfare benefits were meant to be subsistence benefits. In this case, for administrative convenience and to save money (at the expense of welfare families, work expenses were limited to $40 a month even if it cost the family, say, $50 a month to get a transportation pass to get to work. Peyton Whiteley argued the case in the Court of Appeals; Later, in the Reagan era, the Congress overturned this concept, resulting in many families becoming homeless (see below).
Capek v. Blum, 429 N.Y.S.2d 265, 76 A.D.2d 924 (2nd Dept. 1980)(Notice of denial of medical assistance denied due process of law where the notice failed to inform the applicant of the availability of free community legal services).
Capek is actually a quite useful case because there is no right to free counsel in welfare cases even though a family’s subsistence may be at stake. Often, administrative agencies fail to tell people about the availability of community legal services and they go alone to the hearings which almost always result in their benefits being denied or reduced. In this case an elderly man was denied Medicaid but the notice from the welfare department failed to inform him that Legal Aid was available. We got him his Medicaid in the course of this proceeding. I got the case on the last day of the four month statute of limitations, meaning that if the case was not filed that day, it would be barred from being heard in court. There was a huge snowstorm and I had to travel all over the county back and forth several times getting various sets of papers signed by a bunch of people and a Judge in White Plains and then get the papers to New York City to serve on the Attorney General, all by 5 p.m.
Rodriguez v. City Court of the City of Yonkers, 526 N.Y.S.2d 24, 138 A.D.2d 475 (2d Dept. 1988)(Declaratory judgment action not appropriate method to challenge policy of the City Court of Yonkers requiring a deposit of the alleged rent arrears in a non-payment proceeding in order for the tenant to obtain a trial of her warranty of habitability defense).
Sharrock v. Harris, 473 F.Supp. 1173, 489 F.Supp. 913 (S.D.N.Y. 1980)(Court found that a housing authority failed to implement grievance procedure mandated by federal regulations).
People ex rel. Magnero v. Jackson, 342 N.Y.S.2d 411, 73 Misc.2d 740 (Sup. Ct. West. Co. 1973)(In this habeas corpus proceeding, the court, based on the Ella B decision (above) held that a person accused of violating a Family Court order of protection is constitutionally entitled to appointment of counsel before being incarcerated for contempt of court).
People ex rel. Amendola v. Jackson, 74 Misc.2d 797, 346 N.Y.S.2d 353 (Sup. Ct. West. Co. 1973)(In this habeas proceeding, the court ruled that a person accused of violating a Family Court support order is constitutionally entitled to appointment of counsel before being incarcerated for contempt of court).
This pair of cases extended the right to free counsel appointed by the court to some other proceedings in the Family Court, as a matter of constitutional right. In Amendola, I remember clearly getting a call from the Judge’s chambers to ask us to come get the decision. I hurried over to the courthouse and Justice Morrie Slifkin, for whom I had great respect (and a little fear, as he was a stickler for proper procedure) handed me the decision and said softly, “A labor of love.” I got a kick, too from going over to the county jail and getting my clients out right on the spot with the ancient writ of habeas corpus in my hand.
Matter of Tynan, 28 Ed. Dept. Repts. 4 (1988)(Appeal to the State Commissioner of Education by homeless children excluded from school on the ground that their residence in a motel did not qualify them to attend the public schools. The Commissioner ruled in favor of the children and promulgated regulations providing for the education of homeless children).
The insanity of the emergency assistance system in Westchester County is reflected in this case. It wasn’t bad enough that a thousand families were homeless as a result of the policies of the Reagan administration, the resulting system of putting the families in motels as far away as 100 miles from their hometowns redoubled the damage to the kids and parents. The children were taxied back and forth every day at a cost of about $100 a trip each way times all those kids! Of course, that meant they had to leave school right after classes were finished – no chance for extra help or extra-curricula activities and sports. Some parents revolted and tried to enroll their kids in school in the village where their motel was situated (I called it Hopeless Station). So, when a family came to me whose children were barred from attending school near the motel, I petitioned the Commissioner of Education in Albany for an order requiring the school district to accept the children. I argued the case successfully before the Commissioner of Education in the Board of Regents’ room in Albany, an elegant room (though not as interesting and beautiful as the courtroom of the New York Court of Appeals).
Wilson v. Westchester County Dept. of Social Services, 506 N.Y.S.2d 633, 133 Misc.2d 131 (Sup. Ct. West. Co. 1986)(20 Clearinghouse Review 979, accession no. 1007796, Dec. 1986)(It was arbitrary to require automatically, as a condition of eligibility for emergency housing accommodations, that a homeless mother submit to a psychiatric evaluation).
Ms. Wilson spent a cold rainy night in a telephone booth when she was denied emergency housing for failure to submit to a psychiatric exam which she did not want. Welfare had a policy of requiring such exams as a condition of eligibility to receive emergency housing assistance. What rubbish. This case reflects the slippery slope towards government oppression.
Jones v. Berman, 348 N.Y.S.2d 670, 75 Misc.2d 659 (Sup. Ct. West. Co. 1973)(Applicants for emergency public assistance are entitled to an expedited fair hearing upon the denial of their applications).
Spinelli v. Board of Trustees of Village of Mamaroneck, 324 N.Y.S.2d 597, 67 Misc.2d 503 (Sup. Ct. West. Co. 1971)(Court found that police chief's denial of a taxi driver's license to a person with long hair was subjective and arbitrary).
Mr. Spinelli applied for a taxi driving license in Mamaroneck at a time when men wearing their hair long were not popular with police chiefs (and many others in authority).
I
n re Peters, 326 N.Y.S.2d 34, 67 Misc.2d 498, 67 Misc.2d 775 (Fam. Ct. West. Co. 1971)(Child neglect finding may be made on a preponderance of the evidence; the clear and convincing standard is not constitutionally mandated, affirmed, no opinion).
King v. Farmer, 424 N.Y.S.2d 86, 102 Misc.2d 610 (Sup. Ct. West. Co. 1979)(A student may not be barred from returning to school on the ground that he had missed too many days of school).
Johnson v. White Plains Urban Renewal Agency, 65 Misc.2d 293 (Sup. Ct. West. Co. 1973)(Due process of law requires that a municipal urban renewal agency afford a tenant an evidentiary hearing and show good cause before an eviction may take place).
Bronson v. Crestwood Lake Section 1 Holding Corp., 724 F.Supp. 148 (S.D.N.Y. 1989)(In a case of first impression, the district court granted an order preliminarily restraining a private landlord from refusing to rent to families because they receive federal housing subsidies under the "Section 8" program, 42 U.S.C. Secs. 1437f et seq.; the court viewed such discrimination as violative of the Title VIII of the Civil Rights Act of 1968, 42 U.S.C. Secs. 3601 et seq. Jerry Levy carried the ball on this one).
Rodriguez v. Cuomo, 853 F.2d 33 (2nd Cir. 1992)(The court ruled that tenants of subsidized housing accommodations whose rent includes the cost of heat and who pay for utilities could be excluded from receiving home energy assistance benefits).
Universal Motor Lodges, Inc. v. Seignious, 146 Misc.2d 395, 550 N.Y.S.2d 800 (N.Y.Just.Ct., 1990)(procedural case involving eviction of a homeless family from a motel).
The new public housing. this case reflects the fragility of due process rights in the context of extended emergency conditions.
Helping Out People Everywhere (HOPE) v. Deich, 589 N.Y.S.2d 744, 155 Misc.2d 707 (N.Y. City Ct., 1992)
Another case showing that homeless recipients of emergency housing are at a distinct disadvantage when it come to protecting their interests.
Pandanzyla v. Perales, 570 N.Y.S.2d 988, 172 A.D.2d 840 (N.Y.A.D. 2 Dept., 1991) (Homeless children from Zaire were denied welfare and emergency housing but the courts gave them the whole enchilada).
This case really freaked out the welfare department and the county attorney. In the end, the six kids in this family were all adopted by a professor at Harvard. Jerry Levy argued the case.
Constantine v. Blum, 432 N.Y.S.2d 254, 78 A.D.2d 680 (N.Y.A.D. 2nd Dept., 1980)(Medicaid home care services);
Robinson v. Blum, 423 N.Y.S.2d 233, 73 A.D.2d 691 (N.Y.A.D. 2nd Dept., 1979)(Medicaid home care services)
;
Rivera v. Berger, 399 N.Y.S.2d 1022, 60 A.D.2d 605 (N.Y.A.D. 2nd Dept., 1977)(Welfare home care services);
LaValle v. Blum, 67 A.D.2d 708, 412 N.Y.S.2d 640 (N.Y.A.D. 2nd Dept., 1979)(Medicaid home care services)
The welfare department was always trying to move old folks out of their homes and into nursing homes, rather than give them services in their own homes. Maybe the financial arrangements made this desirable for the welfare agency, but it sure wasn’t very nice to the old folks. We did what we could to block their efforts to kill old people.
Black v. Ross, 408 N.Y.S.2d 830, 64 A.D.2d 995 (N.Y.A.D. 3rd Dept., 1978)(Unemployment benefits)
Ehlers v. Bates, No. 10,525/83 (N.Y. Sup. Ct., West. Co. Feb. 16, 1984), Clearinghouse Rev. June 1984, p. 187 (accession # 36187)(Consent judgment providing that county welfare department may not automatically deny public assistance to homeless person on the basis of their lack of a residence and requiring county to provide emergency housing accommodations to all homeless persons who apply for relief).
Ciaio v. Bates, 83 Civ.8630 (S.D.N.Y. 1984), Clearinghouse Rev. June, 1984, p. 169, (Accession #36,234)(Pursuant to a consent decree, the court permanently enjoined the county welfare department from denying food stamps to otherwise eligible persons who are homeless, lacking a fixed residence address).
This case together with the Ehlers case kicked off the emergency housing assistance program in Westchester County at a cost of millions with a cast of thousands.
Brohim v. Holt, N.Y.L.J., Jan. 26, 1990, p. 27, col 5 (City Ct. White Plains)(Homeless persons placed in hotel accommodations by the welfare department are entitled by due process of law to notice of the grounds for eviction and a hearing on the merits of the charges).
My Letter to the Editor objecting to the overuse of hotels for homeless families
Kennedy v. Allen, Bostick v. Allen, Jackson v. Allen, Clearinghouse Review, February, 1986, N.Y. Sup. Ct. Nos. 19447, 19238 and 19446/85. Actions challenging the policy of the welfare department requiring homeless families and individuals to spend lengthy periods in motels, hotels and shelters rather than assisting them in obtaining suitable homes.
Travis v. Peekskill Housing Authority, No. 9292/96 (N.Y. Sup. Ct. Westchester County Oct. 10, 1996). The court vacated an eviction; citing Capek v. Blum (discussed above) the court held that the due process rights of petitioner public housing tenant were violated because respondent's notice of termination had no information about the availability of community legal services.
(with William Griff, Esq.)
Nixon v. State, 758 So. 2d 618 (Fla S.C. 2000)(The 6th and 14th Amendments to the U.S. Constitution require that before defense counsel may concede that his client is guilty of the highest crime charged, he must have elicited the express consent of his client; case remanded for a hearing to determine whether that consent was obtained by counsel); 857 So.2d 172 (Fla S.C. 2003)(After remand in which the trial court found consent, the Florida Supreme Court again reversed and ordered a new trial.). The Florida decision was reversed by the U.S. Supreme Court, 543 U.S. 175, 125 S.Ct. 551 (2004).
Council v. State of South Carolina, 380 S.C. 159, 670 S.E.2d 356 (2008), cert. den. 556 U.S.1290, 129 SCt. 2770 (2009) (Death row inmate was deprived of his 6ith Amendment rights to effective assistance of counsel and must be given a new trial with respect to the penalty).
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HOMELESSNESS AND POVERTY IN THE UNITED STATES:
Introduction
During most of the time since the 17th century, white Euro-American society treated people of color and poor people very badly, not unlike prisoners and criminals, not the same as other folk, indeed, as sub-human. During a brief period following WW II - particularly in the ‘60s and ‘70s - there was a trend in America to increase individual rights and put aside intolerance and prejudice. In many fields, rights were expanded: due process, prisoners’ rights, rights of persons with mental and physical disabilities and illnesses, patients’ rights generally, freedom of information and privacy concerns, women’s rights, children’s rights, civil rights of minorities and even of aliens, desegregation and anti-discrimination policies, expansion of criminal justice rights, right to assistance in the judicial system, welfare rights and expansion of public benefits and subsidized housing.
However, desegregation and replacement of slum housing (with its toxic lead paint and other dangers) never got off the ground. Almost immediately after the passage of laws prohibiting housing discrimination and requiring the integration of public housing, America gave up building new housing for poor families. Once American law declared discrimination unlawful, her people decided that the job was done, the problem was solved. One day, we may look back and wish that we had pursued urban renewal in more constructive ways, rather than in using that opportunity to enhance the middle class while compacting minority poor people in ever more isolated, unhealthy, unsafe slums.
Beginning in the 1970s and gathering intensity in the ‘80s and ‘90s, welfare benefits contracted and homelessness appeared on a large scale. Homelessness of families was an ominous sign, given the overall robustness of the economy. Homeless people were subject to repressive regimes, which were either ignored or unknown to most of society. Then came the contraction of jurisdiction and power of the courts to enforce the rights of individuals (prisoners, habeas corpus, expansion of prisons, expansion of the death penalty, legislation controlling and repressing immigrants, welfare recipients, poor people generally).
Some historical observations:
1798: In his essay on population, Malthus said that the poor have no right to support, and the death of the poor would help keep the population in balance. He also considered that if given money, the poor would simply use it for ale, and that being poor was a disgrace. Ben Franklin expressed similar views. And in 1835, the U.S. Supreme Court added its voice and authority to the damning of the poor:
"We think it as competent and as necessary for a state to provide precautionary measures against the moral pestilence of paupers, vagabonds and possibly convicts as it is to guard against the physical pestilence which may arise from unsound and infectious articles.”
This view gave rise to the poorhouse, both in England and in America and to laws which regulated the movements and activities of the poor:
In 1834, the poor laws were reformed in England, so that only indoor (poorhouse) relief was to be given. This set up a real test of poverty and would deter indolence. Indeed, Disraeli said that the new law "announced to the world that in England, poverty is a crime." The laws were reformed also to ensure that the poor were never better off than the lowest paid workers. The Royal Commission put it this way:
"Nothing but extreme necessity will induce any to accept the comfort which must be obtained by the surrender of their free agency and the sacrifice of their accustomed habits and gratifications."
Just a few decades earlier, the Articles of Confederation (Art. IV) stated that all citizens except paupers shall have free ingress and egress from one state to another. This exception was eliminated from the Privileges and Immunities clause of the Article IV of the US Constitution. One of the key ways in which the poor were controlled was by laws requiring them to stay where they were born. The residence requirement for public aid goes back to the mid-13th Century, to a time when the plague had made farm labor quite scarce, and so, workers were not allowed to travel about. It is not an exaggeration to sum up the English/American view of poverty thusly: "A willing pauper is near to being a thief."
Reform movements in both countries in the early part of the twentieth century did improve the circumstances of poor people somewhat; for one thing, the poorhouse was discarded in favor of aiding the poor in their own homes and by treating them as normal, productive members of society. Indeed, one of the core concepts of the Social Security Act of 1935 is that poor people should have control of their lives by being given cash assistance rather than in-kind benefits. even as late as 1934, in thirteen states poor people could not vote or hold office. In 1968, a lawsuit had to be instituted in order for people not owing real property to gain the right to vote in a school board election in Ossining, New York.
Recent Expansion and Diminution of Rights
The 1960s saw a revolution in thinking about the poor and about race. The country was ready for change in regard to racial issues, at least in comparison with any period prior to the late 1950s and 1960s. The civil rights movement of the late ‘50s and ‘60s and even the urban riots, fire setting and looting were matters which did not provoke repression from the Government. Political, intellectual and economic leaders sympathized with the goals of the Movement and with the struggle against injustice and discrimination; outbursts of mob violence and disorder were not condoned but they were understood.
Programs were developed based on the idea that the poor should be “empowered” to help themselves, individually and in groups. Welfare became an entitlement, protected as a property right under the due process clause of the U.S. Constitution. U.S. Supreme Court Justice William Brennan wrote for the Court in Goldberg v. Kelly that welfare benefits, though providing only a bare subsistence in face of “brutal need,” could enable the poor to “participate meaningfully in the life of the community.”
The ideas giving rise to “Black power” and “black is beautiful,” the elimination of de jure segregation and the prohibition of discrimination in most circumstances of life contributed to a movement towards equality and fair play for all persons in America. The courts and legislatures of the country created and enforced many rights for the poor, for minorities, for children, for people with disabilities, for women, for aliens. The individual gained in many areas, including increased privacy rights, consumer rights, rights not to be detained arbitrarily for mental illness, rights to decent treatment when a person is incarcerated and rights not to have benefits, licenses, etc. terminated or reduced without a fair hearing. Nor were only previously disfavored groups the only ones to gain from the movement. For example, licenses to drive and to practice professions could only be restricted after affording the individual a “due process” hearing.
But this period of expansion of rights, of beginning to treat minorities and poor people with respect and enlarging the rights of the individual to fair play began slowly to contract almost as it began. The early 1970s saw the beginnings of back-watering on rights and benefits and fair housing activities. Two major examples of contraction were the trend to fixed welfare grants, which failed to keep pace with inflation and the nationwide moratorium on the construction of government sponsored housing just as the fair housing laws of 1968 began to be enforced by the courts.
The diminution of benefits and increased eligibility restrictions gathered momentum in the early 1980s, resulting in, for the first time since the Great Depression, a standing population of homeless families. What is truly disturbing about the development of homelessness in America is that it has found acceptance in our norms and laws, and it has eroded the civil rights of those affected - the poor, the disabled, the elderly, women and children. There is danger in accepting homelessness as a normal part of the social environment, because It creates a need to supervise and control a significant segment of the poor. “The beggar's personal message also contains a broader social message even when it is not explicitly presented to his audience.... It is the message that social and economic conditions and opportunities and governmental services are such that many people are unable to support themselves and must rely on the freely given alms of others in order to eke out an existence while living on the streets of New York.”
With two major exceptions - passage of the Fair Housing Amendments of 1988, which enhanced the sanctions for illegal discrimination, and the Americans with Disabilities Act of 1990, the trend away from “people’s rights” has gained intensity. During the 1990s, the federal government launched a program of reducing public benefits to the poor, including housing assistance, imposing term limits on assistance, permitting highly restrictive eligibility requirements to be imposed by the states on the receipt of assistance, eliminating the concept of entitlement to public benefits, reducing protections against arbitrary administrative action, restricting prisoners’ rights to fair treatment, restricting Legal Services programs from zealously protecting poor persons’s rights and curtailing the authority and power of the judiciary to correct errors and abuses on the part of government agencies and officials.
Moreover, non-profit organizations that receive public and charitable funding to help the disadvantaged are at risk; grants are reduced and those which speak too loudly on behalf of their constituents are likely to feel repercussions in the form of reduced or eliminated funding. Rather than resisting and protesting reductions and restrictions, many advocates for the poor, formerly outspoken in their demands for justice and equality of treatment, are muzzled or speak in muted, compromising tones when they ask for help for their clients. Who is maintaining a strident posture now to challenge the massive cut-backs in programs that have already seen significant reduction? Who is challenging the monumental changes being wrought at the expense of the poor? Will our political system remain flexible enough to respond to the turbulence that may ensue in the coming years? Consider this question: should there again be riots in America will the fabric of our democracy and the Bill of Rights survive such a test?
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Homelessness and Poverty in Westchester County
No, the Roberts 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 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, your all history here, tomorrow morning, your 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.
TRESPASSING AT HOME
While I was visiting the building with Ben that day, one of the other residents of the “emergency” apartments asked me for help to stop his summary eviction. It seems he received a paper under his door the day before telling him to be out of the building by 5 p.m. the same day. He had not done so, and a security guard had come the night before threatening him with arrest for trespassing if he didn’t get out immediately.
Another occupant of the building, a Ms. Thomas stopped me to complain about drug pushers in the hallways. She told me that one of the dealers, who does not live in her building had knocked her down and cut her with a knife because she made a remark to him that he should leave her kids alone. For this, she is to be evicted immediately, without benefit of legal notice and a proceeding in housing court. Building security had reported to Social Services that Ms. Thomas was seen “fighting with other residents” in the hallway. I called the main office of the non-profit organization which operated the apartment under contract with the owner and DSS. A “housing supervisor” informed me that since my client was not a tenant, but was living in the emergency apartment as though it were a hotel room, she could be evicted without going to court and would be arrested if she did not leave by 5 p.m. I sent a fax to the head of the organization stating that my client had a right to remain in the apartment pending judicial proceedings.
The following day, Ms.Thomas called to say she had received a ten-day notice to leave the apartment or judicial proceedings would be commenced to evict her. She was subsequently served with court papers claiming only that she had been given notice; no reason was stated, no allegation was made that she had performed any wrongful act. Such was the “New Public Housing,” where due process no longer protects one’s occupancy.
NO VISITORS - TRESPASSERS WILL BE PROSECUTED
Visitors at the facilities for homeless families usually are restricted as to where and when they may visit residents. In some cases, visitors may not go beyond a visitors’ room near the entrance; at other facilities, residents are forbidden to have overnight visitors; and at some, visitors have been excluded entirely. For example, at one facility, the entrance to the driveway resembles a military installation. One must wait for the resident to come down the hill to the gatehouse; then the visit is limited to meeting with the resident in a public room adjacent to the gatehouse.
There was a motel, actually a former bungalow colony, where the management prohibited residents from having visitors after 10 p.m. and required that residents submit to searches of their cottages at any time of the day or night. In a memorandum dated December 15, 1989, defendants advised residents of the motel that "...all visitors must leave the property by 10 PM. Anyone discovered on motel property after 10 PM will be turned over to the police...."
In order to enforce the visitor policy, the motel security guards would search the living quarters of residents after 10:00 p.m. and turn “illegal” visitors over to state police agents for criminal prosecution. The searches were conducted from shortly after 10 p.m. to as late as 2:30 a.m. When the security guards come to the door they announce that they are present to conduct a "bedcheck," an "occupancy check" or a "census check." There are usually two guards, one of whom makes a search of the premises, which often includes the closets, cabinets, drawers and refrigerator as well as the bathroom and bedrooms. The other guard remains outside with an attack dog, with the front door open. Oftentimes, children are awakened in the middle of the night by the beam of in their faces. Occasionally, a guard dog has entered a room and jumped up on a child’s bed.
HOPELESS Station
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 Rackman was a victim of spouse abuse, nor that it was almost certainly her husband who had made the call, deliberately to make trouble for her. He had been sued by DSS for failing to support his child and had beaten Barbara and had threatened their child when she had told DSS his whereabouts and signed affidavits 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. Ms. Rackman was ordered out the following morning.
So now, for Barbara Rackman 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. Again, as in the case of the Roberts family, the families at the Red Bull Motel, just south of Poughkeepsie, hike along a busy corridor to shop for food, pushing baby carriages and trailing youngsters for whom there is no playground other than a shopping center. A single motel room often functions as a permanent home for a family of four. Is it any wonder that one official who inspected this motel’s numerous rooms devoted to homeless families, "the rooms look like refugee tents."
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 and give Debra a break from the boredom and chaos of the homeless section of the Green Turtle. 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 near 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.
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