Biting the Budget At Legal ServicesBy Ginny Looney
Vol. 4, No. 4, 1982, pp. 19-22
In the first budget that Ronald Reagan proposed as President, he recommended the elimination of the Legal Services Corporation. Reagan wanted legal aid for the poor provided through block grants and voluntary efforts of private attorneys. Michael Horowitz, counsel for policy analysis and law at the Office of Management and Budget, said in an interview with the New York Times, "The bar has a fundamental responsibility to undertake that which its own set of ethics imposes. And we think it somewhat troublesome that a bar whose members' total gross income now substantially exceeds $20 billion year needs to lobby for a wholly federally funded program in order to exercise its own admitted responsibility to represent the poor."
While unsuccessful in abolishing Legal Services, the Reagan Administration has struck devastating blows. Funding cutbacks, proposed restrictions on program activities and appointment of some members to the board of directors who are hostile to the program's purpose have left the Corporation suffering.
That Reagan was unable to end Legal Services was due to strong support for the program in Congress. In rejecting the view of Senator Orrin Hatch of Utah that Legal Services attorneys spend "millions of dollars in what we call lawyer activism for liberal social programs instead of working for the common needs of the poor," Congress voted to appropriate $241 million to the Corporation in 1982. Defenders argued that the program was needed to provide a basic right to those unable to afford it and to prevent more violent resolution of disagreements. "True constitutional conservatives support legal services for the poor because they believe that where government is based on laws rather than the edict of a few men, there must be access for all to the applications of those laws to resolve conflicts," said Representative Neal Smith of Iowa. Representative M. Caldwell Butler, a key Republican supporter from Virginia, said, "I think the question is if you believe in the rule of law, in reasonable access to the legal system."
The 1982 appropriation represented a twenty-five percent cut for Legal Services from the previous year, while opponents had proposed appropriations from zero to one hundred million dollars. For 1983, the House Appropriations Committee has recommended that the Corporation's budget remain the same.
Local programs have responded variously to the cutbacks. Some have closed offices; others have limited the types of cases they handle. Staff have been laid off, positions left unfilled, eligibility requirements changed and efforts increased to involve private attorneys in the representation of poor people. In Georgia, two offices were closed and the staff statewide was reduced by seventy-five people, says John Cromartie, executive director of Georgia Legal Services. Now two hundred and fifty persons are on the payroll, which includes every office in the state except the Atlanta Legal Aid Society.
Since some state's programs had surpluses from previous years to enable them to complete cases if funding ended, their financial problems will become more acute next year. In Mississippi, Michael Raff, director of that state's Legal Services Coalition, says "there has been so much expansion of Legal Services with four new programs just getting built up that the cutbacks haven't had as drastic effect as they will. In 1983 I see more staff going and more selection in the types of cases to be handled."
Because of the reduction in funding and the stiffening of eligibility requirements in other social programs, the limitations forced upon legal aid have come at a time when the need is greatest. As Laurence M. Lavin, director of a South Carolina program, said in January, "When you have people who are going to have their food stamps or their Aid to Families with Dependent Children reduced, then the number eligible for our services is going to increase. At the same time, our resources are being cut back." Cromartie cites the elimination of people with mental health disabilities from Social Security benefits as one example of increased need. "For this year and next we have set public assistance benefits as a major priority. This has been a confusing year for clients and there is a lot of fear," he says. "We have generally viewed our role as helping clients find out what their rights are."
Not only federal budget cuts and program changes have increased the demand for legal aid, but high unemployment has brought more clients seeking help. These clients--what one attorney called the "new poor"--present problems like unpaid hospital bills and house foreclosures which are different because "the established poor never had enough money to buy a house," says Imogene Walker, a staff attorney in Georgia. "We also have more calls on how to get disability, not because the person can't work, but because they can't get the kind of work they need."
Except for divorce, Walker's office is still handling the same types of cases it did a year ago: health care, housing, social security, consumer complaints, public assistance benefits, unemployment compensation and civil rights cases. "We have tried to figure out what kinds of cases clients can't handle for themselves," she says.
But Walker points out that many besides the poor look to Legal Services for help. "The program has been so simplified in people's minds to mean free legal advice,"' she says. In talking with potential clients on the telephone, she quickly finds out whether they are financially eligible for the program--income for a family of four must be below the federal poverty level of $9,300 a year. When the caller's income is too high, she does not hang up, but tries to respond to their problem.
Budget cuts have presented the most immediate problem for Legal Services programs. Next year, however, the Corporation may have to cope with further prohibitions placed on representing the poor. Although bipartisan support in Congress has prevented the complete dismantling of the program, even the strongest defenders concede that many of the restrictions proposed in House Resolution 3480 must be passed for funding to continue. While a bill reauthorizing the Legal Services Corporation is not likely to pass this session because Senate backers Lowell Weicker of Connecticut and Thomas Eagleton of Missouri are busy with reelection campaigns, the limitations proposed are expected to become effective in the next year, probably by being attached to a resolution for continuing funding.
The most damaging provisions of HR 3480 curtail lobbying, class action lawsuits against government, and representation of known illegal aliens, such as Haitians and Cubans. Legal Services attorneys are already prohibited from handling criminal or fee-producing cases and from seeking desegregation or "nontherapeutic" abortions on behalf of clients.
"At the moment that state legislatures are enacting new regulations to enforce block grants and decide how to appropriate the money under them, that is the moment Legal Services is no longer being able to represent clients before the state legislatures," Bernard Veney, executive director of the National Clients Council, said at the July convention of the National Bar Association in Atlanta. The proposed restriction on lobbying allows Legal Services staff to give information only when specifically requested by a lawmaker. "Anyone familiar with the legislative process knows that just doesn't happen," says Jim Martin, former legislative advocate for Georgia Legal Services. "Legislators want and expect to hear from the affected parties and if they don't, they asume there is no problem with the bill."
In anticipation of the policy prohibiting lobbying, Legal Services in Georgia stopped its legislative program in January. As a result, says Martin, legislative representation of the poor has suffered. During the regular session of the Georgia General Assembly, for example, a bill passed which reduced in half, to seven days, the time a landlord must wait between serving an eviction notice and putting a tenant's belongings on the street. "After the bill was introduced," Martin explains, "there were not sufficient legislative requests for information that would have allowed us to explain all the reasons the bill was bad. What we would have done in the past is contact the author and committee members and members of the House and explained the consequences of the bill. All we could do this time is respond to the author of the bill and members at the committee meeting."
Equally onerous is the proposed provision in HR 3480 which prohibits class action lawsuits against government. agencies. Class action suits, less than one percent of the cases filed by Legal Services, are important because they allow relief at once to large numbers of people rather than forcing attorneys to return to court again and again to enforce the same right for each individual. Class action suits in California blocking the importation of Mexican workers and $210 million cuts in Medicaid led then Governor Reagan in 1970 to attempt to block federal funding for legal representation of the poor. Similarly, class action suits against the state of Georgia in the mid-seventies caused the General Assembly to end funding for Legal Services. The program had just won a case establishing that a self-employed painter who broke both legs while working and a diabetic woman who was not able to work were both entitled to benefits under the Vocational Rehabilitation Act. Georgia Legal Services had also sued the state to end co-payments required of Medicaid recipients.
In an interview with the New York Times, a former president of the Corporation explained the necessity of suing the government. "Legal Services lawyers don't sue to increase benefits," said Thomas Ehrlich. "They bring suit to insure that poor people get what they are entitled to under the law. When a legal aid lawyer is successful in such cases, it means that a public official has not been doing his or her job the way he or she should."
The Reagan Board
When the Congressional restrictions are passed, they will be enforced by a Reagan-appointed board of directors. Because they were appointed while Congress was in recess--a move questioned as illegal by 133 House members in a letter to the President--the nominees do not have to be confirmed for a year. However, the White House agreed to submit their names to the Senate. Eight have been approved by committee and await only a vote of
Page 21the full Senate. The ninth, George Paras, a former California judge, has not been considered because of an Administration request. Once, in a letter to the former director of the California Rural Legal Assistance Program, Paras wrote, "You must ever champion the 'oppressed,' meaning those who so designate themselves, such as criminals, handicapped, welfare recipients, demonstrators, minorities and miscellaneous other have- lots . . . Your problem is that you feel it is your obligation to be a professional Mexican rather than a lawyer." Only one Carter appointee remains on the board, a client representitive.
As in many of Reagan's nominations in other departments of government, he has named people to the Legal Services board who in the past have opposed the program. William Olson, who received an eight-to-seven committee confirmation vote, was head of the Reagan transition team on Legal Services which reportedly advocated the abolition of the Corporation. Such appointments violate the legislative mandate that nominees should be "fully committed to the role of legal assistance attorneys and support the underlying principle of this legislation that it is in the national interest that the poor have full access under law to comprehensive and effective legal services."
Not only the philosophy of a few new board members but the timing of their appointments has caused ill will. Seven were appointed on the last day of 1981, in time for a board meeting and a vote to stop 1982 grants until they could be reviewed. Their vote came too late, however, since the funds to local programs had been awarded and the contracts already mailed.
In deciding how to implement Congressional restric-
Page 22tions. the Reagan board w ill no doubt take a more narrow view of what Legal Services programs can do. It may also seek to provide legal aid to the poor in ways other than the present predominant use of staff attorneys. During the 1981 funding battle, Reagan aide Edward Meese suggested that law school clinical programs should be used to counsel the poor while public funds served as seed money to encourage innovative programs.
In fact, a shift to more involvement of private attorneys in representing the poor has already begun. Last year the board mandated that ten percent of each program's funds were to be used to provide opportunities for private attorneys to assist the poor through such means as organized pro bono programs, contracts with specific attorneys, partial compensation through a judicare system or lawyer referral services. The amount of the set-aside could be raised.
Local programs already work with private attorneys in some communities. In the Douglasville. Georgia. regional office just west of Atlanta. persons seeking help who are not eligible for services are referred to three attorneys in private practice. A questionnaire was mailed last year to lawyers in the ten counties served by the office to determine who would take referrals and what kinds. "Now that they are getting inundated with calls from poor people. some have asked to be taken off our list." Walker says. "Basically we're talking about pro bono work because our clients are so poor that they can only pay $10 or $16 a month. If they can pay the filing fee and court cost. then the lawyer is doing the work for free."
"This is a period of slow change for Legal Services." says state director Cromartie of Georgia. "It is obvious that the new board is not of the same philosophic bent as the old but it also is not yet clear that the extreme right wing hold the balance. Several new members are moderates: there's a school of thought that they are fair-minded people. If so. we won't see shocking changes." Mississippi's Raff agrees: "There are members who are sincere and sensitive and looking to be educated about Legal Services."
The shifting political climate is having a restraining effect on Legal Services as the program accommodates itself to limited resources and anticipated guidelines. Legal Services' staff speak cautiously about changes which have taken place in the past twenty months and are reluctant to predict actions of the new national board--no need to provide further ammunition for damaging the program. The deputy director of the Atlanta office said she had to check with the public affairs office in Washington before speaking for publication because they were trying to "coordinate press relations." A report on voting rights contracted by Georgia Legal Services was issued publicly without any information identifying it with the organization. Legal Services supporters are making compromises and concessions in order, as Representative' Barney Frank of Massachusetts said last year, to "keep this alive for a better day."
Both Raff and Cromartie are confident that the Legal Services Corporation will survive. "I think Congress has spoken: Legal Services is here to stay," Raff says. Yet, as advocate Martin of Georgia points out, Congress has been making major changes in federal programs through the larger debate on the budget without allowing votes on individual programs. He says Legal Services could get eliminated in this squeeze, even though deleting its small appropriation would have little effect on balancing the overall US budget. If no bill passes this session of Congress, the fight to reauthorize Legal Services must begin again next year. A Presidential veto is also possible.
Rather than outright elimination, however, Raff is concerned about the toll on staff and clients caused by the reduction in resources and restrictions on activities. "What clients will be represented? What cases won't be taken? Who stays on the staff and who goes? I'm more worried about that than whether we will survive." But, he might as easily have asked, at what point do the cutbacks and prohibitions on representation ultimately disable the work of Legal Services?
Ginny Looney is a writer and researcher living in Atlanta. She is the author of Preparing Students for Work: An Evaluation of Co-op Programs in Georgia, available from the Southern Regional Council for four dollars plus handling and postage.