Last call

Part 3

by Kristen Lombardi

Ever since Congress founded Legal Services in 1974, the agency has sparked controversy by carrying out its mission -- to ensure equal access to justice for America's most-vulnerable citizens, such as welfare recipients, elders, and disabled people.

In doing so, Legal Services has assumed an influential role in left-wing causes. Attorneys in California challenged legislation that denies benefits to immigrants, for instance. Offices in New Jersey fought laws prohibiting more welfare payments to mothers who have children while on the dole. And LACCM lawyers have battled welfare provisions that require mothers work to get benefits, without waiving the condition for mothers in school.

In 1995, Republicans tried to make good on promises to slash spending and went after Legal Services with a vengeance. Conservatives questioned the validity of some Legal Services clients, such as prisoners or non-citizens. They debated types of practices, such as class-action lawsuits and lobbying efforts. They even lambasted Legal Services for upholding a liberal agenda, claiming lawyers were using poor people as pawns in a political game.

"No investigation of Legal Services has supported such overblown rhetoric," says Harvard University Law Professor Gary Bellow, a legal-aid attorney for three decades. He says arguments against government help for the poor are lost on Legal Services. "The debate [has grown] into an attack on the system, and it's totally misplaced. Whenever middle-class people living in the conservative image get into trouble, they go to lawyers."

Conservatives claim they want Legal Services to focus on daily interests of the poor, such as welfare disputes, and not major suits that have brought offices fame. Take an early 1990s case pursued by Texas Rural Legal Services. The agency sued Texas A&M University for paying 400 agricultural workers as independent contractors, rather than employees. The university avoided paying unemployment and Social Security taxes totaling 51 cents an hour per employee. Ultimately, A&M relented and paid $86,000 in back payroll taxes.

Such cases, however, make up a tiny portion of the Legal Services caseload. Recent statistics show 70 percent of cases help mothers in divorce, child custody, and welfare disputes -- one million women and two million children received assistance in 1996. Elders make up the second-largest category, constituting 11 percent of cases.

Congress still curtailed the LSC budget by 30 percent last year, leaving $283 million for 267 legal-aid offices throughout the country. To appease those who wanted to close it forever, Legal Services then submitted to restrictions on the kinds of clients and cases lawyers can take on. Ultimately, these actions make it very difficult for America's least-powerful residents to sue the government.

As MJP Executive Director David Waldfogel sees it: "The cutbacks and restrictions are attempts to muzzle the poor's most vocal advocate."

Waldfogel speaks from experience. In 1993, an elderly man came to WMLS to gripe about a rent increase at his Chicopee trailer park. In ensuing weeks, 20 elderly tenants from the park complained of the hike -- a $65 per month increase. Waldfogel discovered the park was covered by rent-control laws, which require owners petition a city board to raise rents. The board must hold public hearings so tenants can speak against increases, none of which ever happened.

Four plaintiffs filed a class-action suit against the Chicopee's rent-control board. Waldfogel argued the board had violated due-process laws and authorized an unfair and burdensome increase. Most tenants were elders on fixed incomes, so they couldn't afford the rent hike, explains Waldfogel. Hampden County Housing Court agreed, ordering back pay to all tenants and an increase of $30 per month.

Under new federal restrictions, Waldfogel can no longer file class-action cases. Instead, he would have to file individual lawsuits, and the court-ordered remedy would only apply to named plaintiffs. Legal-aid attorneys consider such a prospect a nightmare. Class actions not only allow for legal efficiency, says WMLS attorney Rick Glassman, but they also provide a "remedy that affects the entire `class' or community. They are very powerful tools that attorneys at MJP cannot use."

New restrictions also prohibit attorneys from representing poor people at government forums and from lobbying state politicians. Waldfogel and his MJP colleagues cannot represent prisoners involved in debt-collection actions, for example, or immigrants involved in child-custody battles.

Interestingly, much of these LSC limitations had already been established for decades. Past restrictions forbade legal-aid offices from using federal funds to represent illegal immigrants or handle abortion-rights cases. Offices often diverted the restrictions, however, by using nonfederal funds to pay for prohibited activities. What Congress did in 1995 was tighten restrictions by extending limitations that once only applied to federal money to now apply to state funds, private grants, and other revenue.

Across the country, the consequences of LSC restrictions have played out dramatically. Just 12 days after the rules became law last year, a Cuban immigrant, Mariella Batista, was shot dead in Los Angeles by the father of her son. A week before her murder, the Inland County Legal Services Corporation rejected Batista's plea for help in obtaining a protective order against the man. Although Batista was a legal refugee, ICLSC couldn't accept her case because she wasn't a permanent US resident.

"The restrictions are contrary to principles this nation was founded on," says Gail Allard, LACCM board president for the past four years. "Money for Legal Services was well-spent because it went toward the notion of a just society. There is a vast population without equal access to justice because [the system] quickly becomes incomprehensible. It is important poor people be entitled to the same remedies as anyone else."

Ideology aside, cutbacks and restrictions have resulted in closings of 300 legal-aid field offices last year, and layoffs or resignations of 3600 lawyers. This means fewer people are being helped. Legal Services reports 300,000 fewer cases were handled in 1996 than in 1995. And, since cases often assist families of clients, the agency estimates one million fewer Americans benefited from legal assistance in 1996.

As with Waldfogel, legal-aid attorneys in Worcester see themselves as the most-powerful advocates for the poor, a distinction that partially comes by default. It is the legal-aid attorney who protects whatever access to justice poor people have under the law. By stripping legal-aid lawyers of their ability to fully represent clients, however, politicians have essentially told America's poor people, "We can do this and that to you, but you cannot complain about it all."

"The restrictions basically allow the poor some legal help, but not the ability to change those laws that affect them," says Harvard's Bellow.

For this reason, LACCM, with other offices throughout the state, made the ultimate gesture of opposition; LACCM relinquished federal LSC funds, or about 25 percent of its budget. The push for statewide reorganization came from the highest echelons of MLAC, a quasi-public state entity.

"In response to the hostile congressional climate, MLAC board members put together a commission to decide a strategy for reorganization," explains Lonnie Powers, MLAC director. MLAC receives $10 million from state legislators and interest funds. It then distributes money to local offices for general aid and "special projects" that help battered women and the disabled. "We feel the restrictions are unconscionable, and we didn't want [state] money to be hindered by them."

Aside from Cape Cod and Southern Middlesex County, legal-aid offices in Massachusetts have split into two organizations -- a federally-funded agency devoted to telephone advice and referrals and a state-funded agency devoted to traditional legal work. Powers describes the new system as a "collaborative one that ensures a full range of services in an area.

"The system is quite unusual in the country," he adds. "The reorganization is a rational response to an irrational federal decision."

Part 4