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"Providing Counsel for Low-Income Tenants Facing Eviction in N.Y.C."

November 1992 issue of Poverty & Race

A tenant facing eviction in New York City's Housing Court more than likely is African-American or Latina, unable to afford or obtain a lawyer, and living in one of the poorest neighborhoods in the city. She is also inevitably faced with the prospect, if evicted, of long-term homelessness because housing discrimination, unaffordable rents and insufficient housing conspire to limit her housing options. Never mind that New York has some of the strongest statutory tenant protections in the country - including rent regulation, warranty of habitability and a right to pay back rent or cure lease violations even after a court enters judgment. Her landlord will, in 98 cases out of 100, have
attorney well versed in the court's procedures and folkways. And she will, if she is typical, enter into a written agreement that reflects her lack of awareness of her defenses and the imbalance of power in the court proceedings.

Roughly 25,000 households end up evicted by City Marshals in N.Y.C. each year, and many more than that leave their homes under the threat of eviction. Of the almost 11,000 families entering the city's homeless shelter system each year, 44% report that eviction was the precipitating cause of their homelessness. The annual cost of sheltering a homeless family now exceeds $21,000. Yet the City has concluded that at least 90% of the tenants represented by counsel in eviction proceedings are able to retain their homes. If counsel were guaranteed to all low-income tenants facing eviction, not only would thousands of low-income minority tenants be able to retain their homes and remain in their communities, but tens of millions of public dollars could be saved.

These and other data related to the costs and benefits of providing counsel to low-income tenants facing eviction in New York City are discussed in a soon-to-be-distributed report, funded by PRRAC and the Community Service Society of New York City. The study, written by Mary Breen, Eric Weinstock and Arlen Sue Fox, was undertaken as a project of the Citywide Task Force on Housing Court (CTFHC) and the Community Training and Resource Center (CTRC).

The report confirms and expands upon earlier findings that in 90% of the cases tenants forced to defend their homes in eviction proceedings are unable to obtain counsel; that poor people, mostly working poor people, are the most likely defendants in eviction proceedings; and that people of color overwhelmingly and disproportionately bear the brunt of the vast inequities in the eviction process. Fox and Weinstock oversaw a study that examined Housing Court files and interviewed litigants. Using data accumulated through their own study and additional data made available through City agencies, the authors demonstrate that government-funded provision of counsel to all low-income households facing eviction would result in net savings to the public purse by preventing homelessness in a significant number of cases.

The Broader Advocacy Picture

The report is an important component of a long-term advocacy effort. In the mid-1980's, a group of advocates from diverse legal and advocacy organizations began to meet to develop a right-to-counsel strategy. Organizations represented in the group include the CTFHC, several offices of Legal Services for N.Y.C., The Legal Aid Society, the American Civil Liberties Union, the N.Y. Civil Liberties Union, the Community Service Society, and three prominent N.Y.C. law firms - White and Case; Skadden, Arps, Slate, Meagher and Flom; and Fried, Frank, Harris, Shriver and Jacobson. In addition to engaging in policy advocacy around this issue, the group eventually filed a lawsuit, Donaldson v. State of New York, which is advancing the argument that judges in the Housing Court have an obligation to assign counsel to tenants who are unable to afford or obtain counsel.

The Donaldson case embodies two main legal theories. The first is that the guarantees of the due process clauses of the U.S. and N.Y. State Constitutions are violated if there is no right to representation by counsel in eviction proceedings. Both the State and Federal constitutions guarantee a meaningful opportunity to be heard prior to deprivation of property. The interests at stake for the person threatened with deprivation, the costs and benefits to government, and the difference made by counsel are all considerations that courts weigh in determining whether counsel is required in other civil proceedings. In N.Y.C. eviction not only threatens the home, but the very ability to have a home. The cost to government of providing counsel, as the report shows, would be more than offset by the savings engendered. The intervention of counsel in eviction proceedings makes a pivotal difference because of the complexity of the law, the many available defenses, and the imbalance inherent in a judicial system in which one side has a lawyer and the other doesn't.

The other legal argument in the Donaldson case is that since judges have statutory authority to appoint counsel, failure to do so for a tenant who is unfamiliar with the law and faced with the loss of her home is an abuse of discretion. This argument is based on New York's "Poor Person's Statute," a law with antecedents in feudal England, which authorizes judges to assign counsel for litigants who need, yet are unable to obtain, counsel. In the N.Y.C. eviction context, most tenants are ill-equipped to defend themselves because there is no way for them to be sufficiently versed in the applicable law.

These arguments have yet to be resolved by the courts. The Donaldson case has been caught up in lengthy procedural wrangling. But the litigation and advocacy efforts have had an effect. For example, the N.Y. State Bar Association and the Association of the Bar of the City of New York filed amicus briefs on behalf of the plaintiffs and have actively advocated expansion of programs that provide legal assistance to low-income households facing eviction. The League of Women Voters and other "good government" groups have incorporated the issue into their advocacy agendas. It has become the conventional wisdom, as reflected in reports and position papers on the homeless, that provision of counsel to low-income households facing eviction is a critical component of any homeless-ness prevention strategy.

The City's Response

While opposing the lawsuit, the City has been responsive to this advocacy effort. It has introduced a $12 million program to expand availability of counsel to public-assistance eligible households. Funded through the Emergency Assistance to Families Program, the new N.Y.C. effort provides fee-for-services grants to legal services programs to represent up to 10,000 income-eligible households facing eviction. Intense litigation pressure (including a threat of contempt of court in a homeless families rights lawsuit, McCain v. Dinkins), escalating shelter costs, and political pressure to stem the tide of homelessness have forced the City to explore measures to prevent homelessness. Provision of counsel has become a cornerstone of the City's homelessness-prevention efforts,
and the new City program greatly expands the available resources for counsel to low-income families.

But, while making inroads, current efforts fall far short of guaranteeing this right to all tenants unable to afford or ob tain counsel when facing eviction. In the bottom-line realpolitik of government policy, the question of what such a guarantee would cost is the central concern. Our report puts together the numbers that answer that question and demonstrates that guaranteeing this right at government expense would be cost-effective. But it does more. It places the issue in a broader social context. It discusses the causes and costs of homelessness in terms that go beyond dollars and cents. And, by documenting that people denied meaningful access to the judicial system are low-income people of color in overwhelmingly disproportionate numbers, it demonstrates that the inequity of forcing people to defend themselves in a highly technical legal proceeding without counsel reflects a broader fundamental societal inequity.

A right to counsel for low-income tenants facing eviction will not be a panacea in a city with housing ills of the magnitude of New York's. Nor will such a measure, by itself, resolve the problem of homelessness. But, as the City has begin to conclude, and as the report demonstrates, it can be an enormous cost saver for the city, and can begin to address a significant inequity in the judicial system.

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