By Carla J. Kimbrough
DENVER – On Friday morning, attorney Jack Regenbogen said he was “so overjoyed right now.” He had just learned that 10 Denver City Council members had pooled money to start an eviction defense fund.
The pilot program, started with just under $124,000, will provide lawyers for low-income renters to fight evictions. Council members used money from the 2017 year-end office budget balances and personal contributions to create the fund. The council members will work with the nonprofit Colorado Legal Services.
Regenbogen, an attorney with the Colorado Center on Law and Policy in Denver, co-authored with Aubrey Hasvold of the Colorado Coalition for the Homeless, the report, “Facing Eviction Alone.” They found that only 2 percent of tenants facing eviction cases had legal representation, while landlords had representation in 100 percent of the nearly 2,000 cases examined in Denver. According to the report, evictions disproportionately affect neighborhoods with more people of color and areas of rapid growth and gentrification. One of the recommendations was to establish a legal defense fund.
Having legal representation makes a significant difference in not only addressing evictions but also in handling government benefits and criminal records, Regenbogen said. Even when legal protections exist, it doesn’t do people any good if they don’t know about the protections and don’t have lawyers, he said.
The idea of having legal representation for people who cannot afford it is not new. Fifty years ago, the Kerner Commission identified grievances between African-American tenants and white landlords and merchants as one of the major conflicts that led to riots in the summer of 1967. The Commission recommended expanding legal services to poor residents. That recommendation remains relevant in 2018, the 50th anniversary of the report’s release.
“Through the adversary process which is at the heart of or judicial system, litigants are afforded a meaningful opportunity to influence events which affect them and their community. However, effective utilization of the courts requires legal assistance, a resource seldom available to the poor,” the commissioners wrote in the 1968 Kerner report. The excerpt regarding expanded legal services is printed below.
Denver, though, isn’t the only city wrestling with eviction issues, which can ultimately increase homelessness. Regenbogen said New York City provides the “gold standard.”
In August 2017, New York City became the first in the nation to provide free or low-cost legal services to all low-income tenants facing eviction in Housing Court. The program, which is overseen by the 2-year-old Office of Civil Justice, is expected to serve 400,000 tenants when it is fully implemented in five years.
“New York City will be the first city in the country to ensure anyone facing an eviction case can access legal assistance, thanks to this new law,” Mayor Bill de Blasio said when signing the law. “New Yorkers should not lose their homes because they cannot afford a lawyer, and stopping wrongful evictions from happening makes both ethical and economic sense.”
Like in Denver, prior to the New York City law, almost no tenants had legal representation in Housing Court, which resulted in high incidences of evictions and unchecked tenant harassment, according to a press release from de Blasio’s office. Under the program, tenant representation increased from 1 percent in 2013 to 27 percent in 2016 and provided more than 50,000 households with legal services since 2014.
“By enshrining into law that all tenants facing eviction in court will have access to legal services, New York City has again demonstrated national leadership in providing access to justice and a firm commitment to a fair and accessible justice system,” Civil Justice Coordinator Jordan Dressler of the Office of Civil Justice said in a media statement.
Fighting eviction is only one area where legal representation would help people. Another is expanding economic opportunity for people with criminal records, said Regenbogen, who spent his first two years out of law school working on the Second Chance Project that addressed this topic.
Proponents of ban the box measures – which delay an inquiry into criminal records until further in the hiring process – have not succeeded among private employers so far in Colorado. Instead, Regenbogen said people are pushing legislation that would automatically seal eligible criminal records after a certain number of years – depending on the crime – in the current legislative session that began recently. Such legislation could affect 1.5 million Coloradans who have convictions that range from misdemeanors to certain drug convictions, he said. The goal is to use technology – rather than volunteer lawyers – to guarantee that certain records are sealed automatically, Regenbogen said.
Gaining legal representation in the arena of public benefits, such as Medicaid and food stamps, also would be beneficial, Regenbogen said. For example, a “right has existed in theory” that sufficient notice is required to end public benefits, but, again, if people who are representing themselves don’t know about that rule the protection is fruitless, he said.
Colorado may, in fact, be a national leader in requiring administrative law judges to examine whether notice was sufficient in Medicaid cases at the beginning of hearings. If notice was insufficient, the judge can rule on that basis, Regenbogen said, adding he would like to see that protection expanded to other public benefits.
The Kerner Commission identified similar needs in its 1968 report.
“More importantly, ghetto residents have need of effective advocacy of their interests and concerns in a variety of other contexts, from representation before welfare agencies and other institutions of government to advocacy before planning boards and commissions concerned with the formulation of development plans,” the report said. “Again, professional representation can provide substantial benefits in terms of overcoming the ghetto residents’ alienation from the institutions of government by implicating him in its processes.”
The excerpt from the Community Response chapter in the Kerner report addresses expanded legal services appears here:
Expanded Legal Services
Among the most intense grievances underlying the riots of the summer of 1967 were those which derived from conflicts between ghetto residents and private parties, principally white landlords and merchants. Though the legal obstacles are considerable, resourceful and imaginative use of available legal processes could contribute significantly to the alleviation of resulting tensions. Through the adversary process which is at the heart of or judicial system, litigants are afforded a meaningful opportunity to influence events which affect them and their community. However, effective utilization of the courts requires legal assistance, a resource seldom available to the poor.
Litigation is not the only need which ghetto residents have for legal service. Participation in the grievance procedures suggested above may well require legal assistance. More importantly, ghetto residents have need of effective advocacy of their interests and concerns in a variety of other contexts, from representation before welfare agencies and other institutions of government to advocacy before planning boards and commissions concerned with the formulation of development plans. Again, professional representation can provide substantial benefits in terms of overcoming the ghetto residents’ alienation from the institutions of government by implicating him in its processes. Although lawyers function in precisely this fashion for the middle-class clients, they are too often not available to the impoverished ghetto resident.
The Legal Services Program administered by the Office of Economic Opportunity has made a good beginning in providing legal assistance to the poor. Its present level of effort should be substantially expanded through increased private and public funding. In addition, the participation of law schools should be increased through development of programs whereby advanced students can provide legal assistance as a regular part of their professional training. In all of these efforts, the local bar bears major responsibility for leadership and support.