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Thirty-five years ago, activists representing the city’s poor started bringing cases that advanced the rights of tenants and welfare recipients and changed the face of D.C. law. For several years, poverty law was the buzzword for public interest lawyers around the nation, the District a battleground for bright, young lawyers like Patricia Wald and Gladys Kessler, who would go on to become federal judges. But funding dried up, the national mood changed, and lawyers’ attention shifted to other causes. This has prompted the Legal Aid Society of the District of Columbia to take up the somewhat tattered and often forgotten banner of poverty law, after what advocates say is a lapse of nearly three decades in which no group has stepped forward to advocate systemic change. The 70-year-old society is kicking off an appellate litigation project that will try to identify key legal issues unresolved by the D.C. Court of Appeals — and then bring civil cases on behalf of D.C.’s poor in an effort to make new precedent favorable to the impoverished. Lawyers involved in the effort call it a “concerted appellate law reform agenda.” “There will probably be some cases in the U.S. Supreme Court and in the U.S. Court of Appeals for the D.C. Circuit, but we will focus on the D.C. Court of Appeals,” says Jonathan Smith, 46, the longtime public interest lawyer who has headed the society since April 2002. “That’s D.C.’s ‘Supreme Court,’ and it’s a very good court. The judges there have a basic concern about the fairness of the law.” In a coup for the perennially underfunded legal aid group, Smith has just hired an appellate specialist to help lead the project: Barbara McDowell, who has spent nearly seven years at the Office of the Solicitor General and argued 18 Supreme Court cases. Also on the team is David Reiser, of counsel at D.C.’s Zuckerman Spaeder and a lawyer with more than 20 years of appellate experience, mostly while working on criminal appeals at the D.C. Public Defender Service. “I wasn’t looking for a job,” says McDowell, 51, a former D.C. partner in the appellate practice at Jones Day. “But this opportunity called out to me as a chance to contribute to the D.C. community.” Reiser, 47, says he will devote “a substantial commitment” of his time to Legal Aid while remaining at his firm. “A lot of what this country takes for granted in this area of poverty law comes from the D.C. Circuit, when it had responsibility for many of the matters that are now with the D.C. Court of Appeals,” Reiser says. “And the D.C. Court of Appeals itself is a very open-minded court that will be receptive to the kind of information that we hope to provide.” For decades, the D.C. Circuit handled many local appeals that were transferred to the D.C. Court of Appeals in 1970 by a major court reorganization. McDowell will join April 5, and all involved say there’s no quick timetable for action. They will closely examine D.C. law in a number of areas like housing and domestic relations and then choose a set of test cases. “We want to be very deliberate,” Smith says. “We want to build precedent in a strategic manner.” Smith says the society’s project amounts to the revival, a generation later, of the law-reform efforts of the late 1960s and early 1970s. “It was a heady time,” Smith says. “Home rule had just come to D.C. The Superior Court had just been created. I think a similar opportunity exists now. We don’t have that same moment when we are riding a wave of change, but we think that we can move the court in ways that will advance justice for our client community.” SETTING LANDMARKS A generation ago, Florence Roisman of the Neighborhood Legal Services Program (NLSP) helped win landmark D.C. Circuit cases like Edwards v. Habib, a 1968 decision that held that a tenant cannot be evicted by a landlord in retaliation for reporting housing and sanitary code violations, and Javins v. First National Realty Corp., a 1970 ruling that established that a landlord is required under law to warrant to a tenant that his or her apartment is fit to be lived in. In the seminal 1969 welfare-rights case Shapiro v. Thompson, the Supreme Court struck down as unconstitutional a one-year state residency requirement for welfare recipients. That case sprang from three appeals, one of which came from the District and was entitled Washington v. Harrell. It, too, was originally brought by lawyers from the NLSP. But 30-odd years later, a lot of key issues in welfare, landlord-tenant, and domestic law remain unresolved. Smith says his precise litigation plans are not yet clear since he and his team haven’t started their review of D.C. law. But some issues that the team is scrutinizing include: • Reforming the law governing child custody. D.C. statutes and case decisions are unclear on when, if ever, nonparents can gain custody of a child in preference to a living parent. Legal Aid may want to establish that there are some circumstance when the courts can award custody to someone who is not a parent. These might include cases in which a nonparent has raised a child on his or her own if a parent has been incarcerated or unavailable for other reasons. • Helping public-housing tenants avoid eviction for drug use by members of their household. Two years ago, in Department of Housing and Urban Development v. Rucker and Oakland Housing Authority v. Rucker, the Supreme Court upheld HUD regulations that required public housing landlords to provide in the lease that tenants can be evicted because of drug use by household members, even off the apartment’s premises. The standard D.C. public housing lease does not have such a drug provision, however, and Legal Aid wants to prevent this type of eviction from taking place in the District. • Giving teeth to an old pro-tenant ruling. A 1947 D.C. Court of Appeals decision, Trans-Lux Radio City Corp. v. Service Parking Corp., holds that a tenant being evicted for failure to pay rent can prevent the eviction until the very moment it is supposed to begin, simply by offering the full amount of the rent to the landlord. This decision has been watered down over the years. Landlords frequently add fees and additional payments to the outstanding rent to deter these last-minute redemptions. Legal Aid would like to “backstop” the Trans-Lux principle, Smith says. Funding for the appellate project, Smith says, will come partly from reallocating some of the funds that the society has been using for the more traditional goals of representing the poor in trial courts and before administrative agencies, and partly from $15,000 in new money it has received from the recently revitalized D.C. Bar Foundation. Although some groups, notably the Washington Legal Clinic for the Homeless, have recently brought important cases involving aspects of poverty law, many advocates say it has been decades since anyone has undertaken a wide-ranging project like this one. “Since the 1970s, this is the first really concerted effort to focus on the systemic problems of low-income people in D.C.,” says Alan Houseman, who has been active in poverty law since 1966 and since 1982 has headed the D.C.-based Center for Law and Social Policy. Houseman says Smith’s venture is a departure from the norm in the District. Historically, the D.C. Legal Aid Society has stayed out of the forefront of broad legal reform and preferred to represent individual poor people. Instead, the NLSP, established as part of the Johnson-era war on poverty and now the local grantee of funds from the national Legal Services Corp., took the lead role in legal reform in the 1960s and 1970s, Houseman says. But efforts by conservatives to defund the LSC led Congress to impose restrictions on grantees’ ability to be involved in broad-based poverty law. Enter the Legal Aid Society. “Jonathan is trying to make the society into an anti-poverty player,” says Houseman. “It would follow a tradition. In New York, the Legal Aid Society has pursued systemic change for a long time.” COURTING CHANGE Smith and his group will soon confront an appeals court that has not heard arguments like his for some time. “Much of the precedent that we have today was created in the 1960s and 1970s and has not changed,” Smith says. Says poverty-law advocate Roisman, now a professor at Indiana University School of Law: “I was thrilled when Jonathan Smith went back to D.C. in 2002. He’s a great lawyer, and he’ll do a great job with the new project.” Among the NLSP lawyers working for Roisman in the 1970s was Patricia Wald, who became a Carter-era Justice Department official and later rose to the post of chief judge of the D.C. Circuit. Wald now chairs the Justice Initiative of the Open Society Institute. And Gladys Kessler, then a partner in a public interest law firm known at the time as Berlin, Roisman & Kessler, helped establish key principles in landlord-tenant and domestic-violence law in the District. Kessler now sits on the U.S. District Court bench here. “We want to confront the issues that we see in the trial courts,” says Smith. “We want to know what precedents stand in our way and what the trend of the court is. This is an opportunity for us to do powerful and exciting work.”

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