Velazquez – Analysis & Implications
The following outline, prepared by the Brennan Center for Justice, analyzes aspects of the recent decision of the U.S. Supreme Court in Legal Services Corporation (LSC) v. Velazquez, describes possible next steps in the case, and invites suggestions and questions from the legal services community and other interested people. As you may already know, the Court two weeks ago declared unconstitutional the federal appropriations restriction that barred LSC-funded lawyers from challenging welfare reform laws. Last week, the Court denied plaintiffs’ certiorari petition thereby letting stand the portion of the Second Circuit’s decision that had denied plaintiffs’ request for preliminary relief to bar LSC from enforcing the various other restrictions applicable to LSC-funded lawyers.
Protection for LSC-funded Lawyers and Clients
For the first time, the Court has held that LSC-funded lawyers and their clients are protected under the First Amendment notwithstanding the fact that the lawyers operate within a federally subsidized program. The Court also found that governmental interference with advocacy by legal services lawyers interferes with the autonomy of the courts themselves in violation of the Separation of Powers doctrine. The decision makes clear that legal services lawyers, even though funded by government, have the same relationship to their clients that other lawyers have to their clients.
Supreme Court Concern About the Broad Sweep of the Welfare Reform Challenge Restriction
The Court’s holding reflected its conclusion that the welfare reform challenge restriction was broad in scope. Focusing on the “constitutional avoidance” doctrine, the Court noted LSC’s position that if a judge were to ask a routine question as to whether a particular law would be unconstitutional if construed in a particular way, the LSC-funded lawyer “simply could not answer.” According to LSC, the restriction barred constitutional or statutory challenges to statutes, regulations or ordinances related to post-1995 welfare reform legislation whether federal, state, or local and included TANF and elements of the SSI and Food Stamps programs. The restriction also barred challenges to state and local general assistance programs. For these reasons, the restriction impaired the capacity of legal services lawyers to handle benefit cases on behalf of individual clients, rather than preventing only the litigation of controversial challenges to high profile welfare reform provisions (as was at times asserted by conservative pundits and by some within the legal services community).
The Insufficient Number of Non-LSC Lawyers
The Court found that an insufficient number of non-LSC-funded lawyers is available to alleviate the constitutional problems caused by the welfare reform challenge restriction: “There often will be no alternative source for the client to receive vital information respecting constitutional and statutory rights bearing upon claimed benefits.”
Implications of the Courts Actions With Respect to the Other Challenged Restrictions
The Court’s inspiring discussion of the implications for the First Amendment and the Separation of Powers when Congress restricts lawyers in ways that interfere with the function of the courts illuminates the possible vulnerability of some of the other restrictions, for example, those barring LSC-funded lawyers from participating in class actions or claiming attorneys’ fee awards.
Also, the Second Circuit’s decision had noted that plaintiffs may pursue an “as applied” challenge to the legal services restrictions. One such approach would stress the problems for legal services lawyers and clients caused by the restrictions in the context of LSC’s program integrity regulation, 45 C.F.R. 1610.8. LSC’s program integrity regulation which requires that any LSC-funded program must maintain physical separation from any non-LSC-funded program engaged in restricted categories of advocacy continues to burden civil justice communities around the nation that seek to dedicate unrestricted non-LSC funds to finance forms of advocacy that are prohibited under the restrictions applicable to LSC-funded programs. Since the justification for the requirement of physical separation is to draw a clear line between the government-funded governmental message and any privately funded private message, the Supreme Court’s finding that LSC is not engaged in advancing a governmental message casts further doubt on the validity of the requirement. Another “as applied” approach would emphasize that the legal services restrictions, even if presumed to be neutral on their face, have the intended effect of impeding only the legal claims raised by low income individuals.
Implications of the Courts Denial of Certiorari
The Court’s action on Monday, March 4, 2001, in denying plaintiffs’ petition for certiorari regarding the various other restrictions, poses no actual bar to plaintiffs’ challenge to those restrictions. Because Velazquez reached the Supreme Court on an appeal from the district court’s denial of a preliminary injunction, the U.S. District Court for the Eastern District of New York retains its jurisdiction over the case, and plaintiffs are free to advance their claims, some of which are described above, against the other restrictions and the program integrity regulation.
Political Reaction to the Velazquez Opinion
While forces hostile to justice for low income people have always sought to eliminate and restrict LSC funding, and while some increasingly focus their hostility toward legal services providers that receive funds from other sources as well, the intensely hostile political climate in the Congress in 1996 has somewhat abated. The Velazquez decision marks the first time that the Supreme Court has considered the restrictions enacted during the Gingrich era. The Court’s decision eloquently articulates profound concerns about the impact of the restrictions not only on lawyers, but on citizens, on courts and on the society as a whole.
We are heartened by the fact that editorial opinions from around the nation uniformly and vociferously support the Velazquez decision, recognizing the opinion’s broader implications. For example,
-The Fort Worth Star-Telegram calls the opinion “wise.”
-The Pittsburgh Post writes that “Congress’ attempt to tie the hands of poverty lawyers was an injustice.”
-The San Francisco Chronicle concludes, “Had the court ruled otherwise, it would suggest that only those who can afford to pay for justice are entitled to it, making a great mockery of our hallowed call for ‘liberty and justice for all.’”
-The St. Louis Post-Dispatch praises the Court for “limit[ing Congress’] attempts to rig the courts against the poor.”
-The St. Petersburg Times says the Velazquez decision “means that legal-services lawyers will no longer be deemed second-tier lawyers, and their poor clients will no longer be treated as second-class citizens.”
-The Los Angeles Times states, “Congress should see the court’s decision as a warning that there are limits to punishing poor people who need legal help” and “Congress should at least leave the agency’s budget intact and lift other harsh restrictions.”
-The Louisville Courier-Journal decries the “orgy of recrimination against the needy and helpless” that led to the restriction, and says the Supreme Court “tried to repair some of the worst damage.”
-The New York Times commends the Supreme Court for overturning “a pernicious law passed by Congressional Republicans to handcuff and muzzle the lawyers who represent poor people in civil cases.”
-The Washington Post welcomes the end of a “noxious congressional restriction.”
-Newsday states that the decision “draws a line in the sand against further erosion of the First Amendment free speech guarantee.”
-University Wire notes that the ruling is “a sign the Court isn’t as viciously biased toward the right as we once thought.”
- The New Jersey Law Journal “applauds the decision” and urges the Congress “to release Legal Services lawyers from the morass of gags and fetters that have hampered their activities in recent years.”
- The Los Angeles Times writes, “Congress should see the Court’s decision as a warning that there are limits to punishing poor people who need legal help.”
- The Blade (Ohio) calls it a “righteous ruling,” noting, “Congressional efforts to keep those whose lives are governed by [welfare laws] from challenging them is tantamount to tyranny.”
- The Times Union (N.Y.) welcomes the foiling of “an attempt by Congress to muzzle certain attorneys who represent the indigent.”
- The Tennessean praises the overruling of an “egregious restriction,” and advises, “Instead of trying to prohibit lawsuits against the government, Congress’ time would be best spent addressing the issues that so frequently put the government in court.”
- The Des Moines Register writes, “In last week’s decision, . . . the court majority got it right.”
- The Boston Globe notes, “The highest court ruling points out that Congress’ gag rule could turn legal proceedings into farce.”
- The Miami Herald states, “Had the four dissenting justices . . . prevailed in the legal aid case, the poor would . . . lose the dignity of complete legal advice.”
- The Star Tribune says that the ruling upholds “a very basic tenet of the First Amendment.”
A few columnists have criticized the ruling:
- James J. Kilpatrick, a columnist writing in The Atlanta Journal, dismisses the ruling as “patent nonsense,” saying, “In the holy name of ‘free-speech,’ Justice Anthony Kennedy created a brand-new First Amendment right—a right for recipients of tax funds to ignore the instructions of Congress.”
- The Chicago Tribune calls the ruling a “strange definition” of free speech, and notes that by preventing Congress from using its judgment when funding lawyers, the ruling is “at odds with both common sense and judicial precedent.”
- Bruce Fein, general counsel for the Center for Law and Accountability, writing in The Washington Times, finds Justice Kennedy’s ruling “delusional” and “thoroughly unconvincing to the mind.” He writes, “[Justice Kennedy] needs reminding that free speech romanticism should not be conflated with unstarry-eyed judging.”
- A letter appearing in the Los Angeles Times calls for the abolition of LSC, asserting, “It would rid us of this reprehensible nest of leftist lawyers and send a message to the Supreme Court, reminding it of which branch of government makes the laws.”
Prominent academics have praised the ruling:
- Edgar S. Cahn, a co-founder of LSC and currently a law professor at the University of the District of Columbia, calls the decision “very important.” He adds, “The ability of legal service providers to attract lawyers to do top-notch work by devoting their lives to social justice may be restored.”
- Karen Czapanskiy, a University of Maryland law professor, calls the ruling “a terrific decision.”
- Laurence Tribe, a Harvard Law School professor states that the ruling is “an important affirmation that the government’s power to attach strings [to funding] is significantly limited by the First Amendment.”
Legal services lawyers and other non-profit organizations interested in legal services for the indigent have welcomed the ruling:
- LSC-funded Hudson County (N.J.) Legal Services Corporation Executive Director Timothy K. Madden says, “As far as welfare clients are concerned . . . our hands are now untied.”
- LSC-funded Union County (N.J.) Legal Services Corporation Executive Director Richard Bennett says the ruling makes him feel more like a “regular lawyer.”
- Legal Services of New Jersey President Melville Miller states, “As a legal matter, [the ruling] is of great importance precedentially because it reaffirms first amendment rights.”
- LSC-funded Legal Aid Bureau, Inc. (Md.) Executive Director Wilhelm H. Joseph Jr. asserts, “The restriction that was struck down flies in the face of democracy by saying LSC lawyers are prohibited to point out to a court that a particular law is unlawful.”
- LSC-funded Legal Services of Northern Virginia Executive Director Charles Greenfield says the ruling “takes the tape off our mouths. It gives us the full arsenal of arguments that other lawyers throughout the country have to advocate on behalf of their clients.”
- LSC-funded Legal Aid of Central Texas Director Regina Rogoff says, “The Supreme Court recognized the unique role that legal services lawyers play, and I think that the teeth of the analysis has to do with interfering with the independence of attorneys and their representation of clients.”
- LSC-funded Legal Services of North Texas Executive Director Jonathan Vickery notes that indigent people rely on legal services lawyers to obtain welfare benefits because ”t’s not a practice where people can make a living off it.” He says the ruling enables legal services lawyers to provide more effective and complete legal representation to their clients.
- Texas Civil Rights Project Director James Harrington states, “This one goes to the core of being an attorney, picking a strategy to help your client.”
- Public Justice Center (Md.) Executive Director Jonathan M. Smith notes that “[h]aving the Supreme Court let lawyers represent clients” will benefit both poor people and the legal services community. “It’s a wonderful decision,” he adds.
- Homeless Persons Representation Project (Md.) Director Peter Sabonis calls the ruling “a positive development.”
- Center for Law and Social Policy (D.C.) Director Alan W. Houseman notes, “[I]t was an important decision.”
- National Legal Aid and Defender Association Vice President for Government Relations Julie Clark says the decision is “a very significant victory.”
A congressmen has said:
- Congressman Jose Serrano (D-NY): “This represents a victory for the people who rely on Legal Services for help and it reverses an unfair and unjust rule that was set by the Congress in 1996.”
Nina Totenberg’s recent All Things Considered interview of Rep. George Gekas (R-PA) effectively captures some of what is different about the current times from 1996. Totenberg cites Rep. Gekas as recognizing that the ruling has paved the way for challenges to other restrictions on LSC-funded lawyers. Rep. Gekas, who in 1995 had sponsored a bill calling for the abolition of LSC and for funding legal services through a system of block grants to the states, is quoted as stating: “I do not believe that there is the capability of rounding up votes for those who oppose legal services to ever, ever come close to extinguishing it.”
In light of the new circumstances, new opportunities may now be present to explore with Congress various approaches with the potential to constructively address concerns of legislators across the political spectrum while ensuring that legal needs of low income individuals and families will be met.
Things To Do
The Brennan Center is continuing to build the case, both in and out of court, to illuminate the harms caused by the legal services restrictions and to eliminate the requirement of “physical separation” which wastes public and private funds available to support access to justice for low income clients. We are hopeful that as LSC revises its regulations in light of Velazquez, and reviews all of its regulations, it will recognize that the current moment offers opportunities to enhance the capacity of legal services lawyers to represent their clients and will abandon its policy of adopting rules even more restrictive than those Congress requires. Here are some other specific things individuals may wish to do:
Comment on LSC’s new regulation – Individuals who represent low income clients in public benefits cases may wish to participate in the notice and comment process LSC will conduct as it issues new regulations to comply with Velazquez.
Examine state, local, and other restrictions on legal services funds in light of Velazquez – State and local governments, IOLTA programs, legal services providers financed with non-LSC funds, various other organizations that distribute funds for legal services, and other entities involved in financing or providing legal services may wish to examine restrictions on funding streams to determine whether such restrictions are also unconstitutional in light of Velazquez. The Brennan Center is available to assist with this work (please call staff attorney Craig Siegel at (212) 998–6322).
Identify effects of legal services restrictions -The Brennan Center welcomes legal services lawyers, clients and others interested in working with us to document the impact of federal, state, local and other restrictions on legal services advocacy. We work to educate the public, including the Congress and state and local legislatures, about the ways in which legal services restrictions harm clients and communities. The record we are creating will also be useful to the district court in the next phases of the Velazquez case and/or in new litigation challenging funding restrictions that interfere with legal services advocacy.
For Further Information
The Brennan Center is preparing a longer analysis of the Velazquez decision for inclusion in an upcoming volume of Clearinghouse Review. Please also feel free to contact the Brennan Center’s Poverty Program about your interest in legal services. We welcome questions and suggestions about all of our work, including the Velazquez litigation. Many of our activities are described on our web site. We hope that you will subscribe to our Legal Services E-lert news service when visiting the web site. We encourage all who are interested in strengthening access to justice for low income individuals and families to join forces with us.
Question & Answer
February 28, 2001 – Press Release
February 28, 2001 – U.S. Supreme Court Decision
October 4, 2000 – U.S. Supreme Court Oral Arguments
September 27, 2000 – Press Release
Plaintiffs’ Supreme Court Brief
Links to Amicus Briefs