Despite attempts at reform, federally-funded groups that are supposed
to provide legal representation to the poor still focus their efforts on
activities that do little to meet the everyday legal needs of the poor.
The cases described below present examples of federally funded legal services
providers being involved in legal matters that are either misguided attempts
to advance leftist "law reforms" or cases that directly harm the interests
of poor families.
Legal Services Argues That Indian Casino Gaming Revenue is Not "Income"
In 1997, a Michigan legal services provider made the incredible argument that Indian tribes receiving substantial casino gambling revenue are still eligble to receive benefits from federal poverty programs because the casino revenues are not "income" under the terms of the Social Security Act. Michigan Indian Legal Services (MILS), a recipient of federal funds from the Legal Services Corporation, filed appeals in Michigan state court against the Michigan Department of Social Services (DSS) on behalf of an Indian tribe attempting to become eligble for federal Aid for Dependent Children (AFDC) benefits. DSS had determined that the tribe's gambling revenue was income that must be included in calculating the tribe's eligibility for AFDC. MILS based its argument on a provision of federal law that exempts from calculation of eligibility for benefits money received by Indian tribes in court judgments that is distributed per capita to tribal members or held in trust for tribal members. The appeals court rejected MILS' argument on the rather obvious basis that casino gaming revenues are not funds received as part of a court judgment and thus fall outside the scope of this provision of the law. This case is a prime example of legal services providers using their resources to reverse limitations on welfare programs through the legal system, rather than using those resources to satisfy the actual legal needs of the poor.
See Stevens v. Department of Social Services, 572 N.W.2d 41 (Mich.
App. 1997).
Legal Services Tries to Expand Retaliatory Eviction Law to Protect Overzealously Complaining Tenants
The Legal Aid Society of Albuquerque, a Legal Services Corporation grantee, represented two tenants in eviction actions brought by two separate landlords in Bernalillo County, New Mexico. In each case, it appeared that the landlords sought to evict the tenants because the tenants had made repeated complaints about noise in adjoining housing units. In one of the cases, testimony indicated that most of the complaints were unfounded. In response to the tenants' repeated complaints, the landlords served them with notices of eviction. In defense of the tenants, legal services argued that a New Mexico retaliatory eviction statute prevented the landlords from evicting the tenants for their complaints. Both the trial court and the New Mexico Court of Appeals ruled that the retaliatory eviction law clearly does not give tenants a "right" to complain about noise. In New Mexico, retaliatory eviction laws are designed to prevent landlords from evicting tenants who are complaining to the owner or to government agencies about building code violations affecting health and safety--there is no language concerning the right to complain about noise levels. The Court of Appeals noted that other remedies already existed for the tenants and warned that legal services' argument for expanding retaliatory eviction laws could lead to an increase in litigation costs (and, as a result, rents), doing more harm than good. Although not stated explicitly by the appeals court, one possible reason for the use by legal services of the retaliatory eviction argument is that such laws usually provide for much higher damages awards than the more traditional 'quiet enjoyment' actions available to tenants in these situations. It is disturbing that legal services organizations try to create 'law reform' by dramatically expanding laws, such as retaliatory eviction statutes, that are meant to apply in a few special cases--especially when existing law already provides for effective ways to protect their clients' rights.
See Casa Blanca Mobile Home Park v. Hill, 1998 N.M. App. LEXIS 83 (N.M. App. May 11, 1998).
Ohio Legal Services Group Uses Technicality to Defend Deadbeat Dad
In a disturbing case, the Legal Aid Society of Lorain County, a recipient of federal funds from the Legal Services Corporation, successfully defended a father seriously in arrears for child support using a legal technicality. The father, George Payne, had failed to pay over $5,400 in child support payments to his daughter Cherise between February, 1985 and June, 1990. In an earlier legal proceeding, the Lorain County Child Support Enforcement Agency (CSEA) sought only a $900 portion of Payne's arrearage, calling it a "partial judgment"--implying that CSEA would seek the remainder of the arrearage at a later time. Nevertheless, legal services managed to convince a state court judge that the principal known as "res judicata" prevented CSEA from seeking the remainder of the arrearage. Broadly speaking, res judicata prevents parties to a lawsuit from relitigating the same claims and issues in a later lawsuit. In effect, it is the civil justice equivalent to the prohibition on 'double jeopardy' found in the criminal justice system. Legal Services convinced the judge that CSEA forfeited its right to seek the remaining arrearage from Payne once it had gotten the partial judgment in the previous action on the theory that CSEA had to seek the whole arrearage at one time. Regretfully, legal services has succeeded in creating a technical defense for failure to pay desperately needed child support payments. Legal services has also "succeeded" in limiting the flexibility of states to pursue 'deadbeat dads' for smaller portions of their child support arrearages at several different times, even when doing so might mean an increased chance that the delinquent fathers would pay the judgments willingly.
See Austin v. Payne, 1998 Ohio App. LEXIS 546 (Ohio App. 9th,
February 11, 1998).