Brooklyn Housing Court (NYLJ/Rick Kopstein)
As Mayor Bill de Blasio prepares to sign a bill to ensure that all tenants in housing court have legal counsel, several other cities are moving forward with their own programs to provide poor litigants in civil cases with legal assistance.
De Blasio is scheduled on Friday to sign a bill that, while not establishing a per se right to counsel for litigants in the city’s housing court, commits the city to steadily increasing the city’s current investment of about $72 million to $155 million over five years.
The U.S. Supreme Court’s landmark 1963 decision in Gideon v. Wainwright, 372 U.S. 335, held that the Sixth Amendment requires a right to counsel for all criminal defendants and, in New York, there is a right to counsel in some Family Court proceedings, including child custody matters.
“After your liberty, then custody of your kids, I think having a home to live in is the next big area,” said Andrew Scherer, the policy director for the Impact Center for Public Interest Law at New York Law School.
For Scherer, signage of the bill is a culmination of an effort over more than three decades to increase the civil right to counsel. In the late 1980s, while he was with Legal Services NYC, he litigated Donaldson v. State of New York, 156 AD2d 290, a class action suit in which he argued that there is a right to counsel for tenants in Housing Court.
The plaintiffs failed to establish a class certification and the case was dismissed, but around that time the city’s Human Resources Administration began setting aside funds to provide counsel for families with children facing eviction.
Without finding success in the courts, Scherer and other advocates decided to take their fight to lawmakers’ front doors. In 2008, a bill to establish a right to counsel in housing court gained some traction, but the subsequent economic downturn brought the effort to a halt.
In 2014, New York City Councilman Mark Levine, a Democrat who represents several neighborhoods in northern Manhattan, proposed a right to counsel for tenants. The stars seemed to align for advocates at that point, Scherer said, as de Blasio had just been elected on a platform of ameliorating economic inequality in the city.
In July, Council passed the bill with overwhelming support; only three of 51 council members voted against it.
For years, tradition held it as a rule of thumb in New York City’s Housing Courts that almost all tenants would appear without attorneys while roughly the same proportion of landlords had representation, but growing investments by the city and the court system to expand civil representation for poor New Yorkers is changing that: According to a study by the city’s Office of Civil Justice, about 27 percent of tenants who appeared in court during a two-day study period did so with attorneys at their sides.
While New York City may be leading the way in establishing programs to provide legal counsel to poor litigants in civil cases, it is not alone: Municipal and state leaders across the country are assessing where, in the absence of a true “civil Gideon,” cities can step in to provide civil litigants with attorneys.
For example, Louisiana, New Hampshire and Utah enacted laws this year to require counsel for defendants who are being tried for failure to pay fines, which is typically treated as a civil matter.
This year, the city governments of both Philadelphia and Washington, D.C. allocated funds to provide counsel for renters facing eviction—$500,000 and $4.5 million, respectively.
John Pollock, staff attorney at the Public Justice Center and coordinator for the National Coalition for a Civil Right to Counsel, said in just this past year there have been 60 pieces of legislation proposed and about a dozen cases litigated regarding the provision of counsel in type of civil proceeding or another.
He likened providing counsel for low-income litigants to preventive medicine—or, as he called it, “preventative lawyering”—as helping those litigants can prevent societal costs elsewhere. In New York, for example, providing counsel to tenants in housing court is expected to save the city more than $300 million that it would normally spend on homeless shelters.
“Society pays a tremendous cost when you leave these problems untreated,” Pollock said.
But someone will always end up paying, said Theodore Frank, a staff attorney for the Washington, D.C.-based Competitive Enterprise Institute who has spoken out against legislation to provide counsel for low-income people. In the case of New York’s new law, he said the costs not only burdens taxpayers but landlords as well, which could ultimately increase prices for tenants.
“These things are not free,” Frank said. “If you make it hard to evict people, you’ll increase the price for landlords.”
A better solution, he said, may lie in providing more direct aid to the poor “without filtering it through a lawyer first,” or lowering barriers for people to enter the practice of law.
And as for other practice areas where Scherer and other advocates see fertile ground for expanding civil Gideon, Scherer noted that both New York City and New York state are investing money to provide immigrants facing deportation with legal assistance.
De Blasio and the council recently struck a deal under which the city government pledged to allocate $26 million to provide attorneys to immigrants who have not been convicted of serious crimes, and anonymous private donors agreed to provide $250,000 for litigants who are ineligible for taxpayer money.