Robert Cooper
Marc Dietz
Case Study: Legal Services Corporation v. Velazquez
Legal Services Corporation v. Velazquez touches on several fundamental principles of Public Interest law. Government funded non-for-profit organizations protect America’s most vulnerable inhabitants by helping them obtain and maintain basic human necessities in the form of shelter, food stamps, welfare, social security disability and other services. Legal Services Corporation (LSC) funds allow many of these organizations to survive and permit advocates of the poor to continue in their mission. The wide reaching restrictions imposed on LSC funds by Congress in 1996 threatened the livelihood of public interest organizations, and by extension, the livelihood of their clients. The constitutional challenge brought by the BrennanCenter for Justice struck down the most draconian of the restrictions and ensured that the recipients of LSC funds could adequately advocate for their underprivileged clients.
The Legal Services Corporationwas created by Congress in 1974 and exists to “provide high-quality civil legal assistance to low-income Americans.”[1] Each year Congress allots money to the LSC, who in turn distribute it to legal advocate organizations in the form of grants. An LSC grant establishes a set of guidelines that the organization receiving the funding must follow if they wish to receive LSC money. The grants ensure that organizations cater to clients who are disabled, elderly, war veterans, or sufficiently indigent. [2]Even of this select group, the focus of the organizations receiving an LSC grant is usually to ensure basic human needs such as housing, health care, and protection from domestic violence.[3] The legal system does not guarantee an attorney in civil disputes for those too poor to afford one, and for the last 33 years LSC funds have been crucial in ensuring that the interests of the underprivileged are sufficiently represented.
Ever since its initial creation, the LSC’s existence has been tumultuous. After surviving the Reagan administration’s budget cuts[4], the LSC took its biggest hit in 1996. While in the midst of “enacting immigration reform, prison reform, and welfare reform,”[5] Congress passed the Omnibus Consolidated Rescissions and Appropriations Act of 1996. Not only did the act decrease LSC funding by 30.5 percent[6], but it created a series of restrictions further limiting the potential recipients of LSC aid. These constraints included, but were not limited to, preventing LSC funded attorneys from: taking any part in challenging welfare reform laws[7], requesting attorneys fees from the losing party in a victoriouslaw suit[8], lobbying or in anyway influencing legislation[9], filing a class action[10], or participating in abortion litigation[11]. Through the Appropriations Act, Congress excluded LSC funded attorneys from lobbying against the socially conservative legislationthey were simultaneously enacting and tied the hands of the poor by eliminating their most prevalent advocates.
The 1996 Congressional Act had immediate repercussions. The newly imposed restrictions required LSC-financed lawyers to abandon more than 600 legal matters.[12] The indigence of the clients affected left them little recourse, and without the money to hire a private attorney, their cases collapsed. One such client was Carmen Velazquez. Ms. Velazquez, a 56 year old woman living in New York, was challenging a New York welfare regulation on the grounds that it was unlawful “because it did not afford her a pretermination opportunity to demonstrate that physical impairments prevented her from working.”[13] Upon the passage of the 1996 act, because her legal issue challenged a welfare regulation, Ms. Velazquez’s Bronx Legal Services attorney was forced to withdraw from the case so that his LSC funded organization would not lose their grant.[14] Ms. Velazquez searched unsuccessfully for a substitute attorney and eventually lost her benefits.[15]
In 1997, attorney Burt Neuborne of the BrennanCenter for Justice filed a challenge to the 1996 Congressional Act on behalf of Ms. Velazquez and a handful of other plaintiffs. Founded on the humanitarian ideals purported by Justice Brennan, the BrennanCenter is a “non-partisan public policy and law institute that focuses on the fundamental issues of democracy and justice.”[16] An award winning law professor at New YorkUniversity since 1974, Neuborne was the Director of the BrennanCenter at the time that Velazquez was filed.[17]
The Legal Services Corporation and the United Stateswere represented by Edwin Kneedler and Alan Levine. Edwin Kneedler was an attorney at the United States Office of the Solicitor General. Alan Levine was an attorney at Kronish Lieb Weiner & Hellman LLP. The case was referred to Mr. Levine by the president of the Legal Services Corporation, Alexander Forger. Mr. Forger had been instrumental in creating a compromise with Congress on continued funding as well as placing restrictions on the LSC. Mr. Levine was hired by Mr. Forger to defend that compromise, which would continue the LSC’s existence. The case was seen by Mr. Levine as defending the balance created by the interests of both the Legal Services Corporation and Congress in providing civil legal services.[18]
Burt Neuborne’s attack on the 1996 Congressional Act’s restrictions was a broad assault. Relying on the constitutional argument that the restrictions limited free speech, Neuborne motioned “for a preliminary injunction focused on the application of the restrictions of [LSC] money.”[19] Anticipating an adverse judgment, LSC revised their regulations. Under the revised regulations, an organization who wished to continue to receive LSC funds only need establish an entirely separate institution, privately funded with different personnel through which to pursue the prohibited legal action.[20] The District Court concluded that the new LSC regulations were sufficiently similar to a set of regulations upheld as constitutional in Rust v. Sullivan.[21]. In Rust v. Sullivan,the Supreme Court upheld as constitutional regulations from the Department of Health and Human Services prohibiting doctors receiving government funding from “engaging in abortion counseling, referral, and activities advocating abortion.”[22] Rust was upheld because doctors were permitted to construct a separate building with different staff unassociated with the government funds through which they could facilitate abortion. As a result, the doctors’ first amendment right of free speech was not infringed upon.
The Second Circuit Court of Appeals relied on Rust to uphold the District Court, noting that “because grantees were not ‘effectively prohibit[ed] ... from engaging in the protected conduct outside the scope of the federally funded program,’…there was no unconstitutional conditions violation.”[23] However, the Court of Appeals did hold in their opinion that the restriction against challenging existing welfare statutes or regulations is viewpoint discrimination in violation of the First Amendment.[24] Both parties appealed the Appellate Court decision to the Supreme Court.
The Supreme Court granted certiorari and issued its opinion on February 28, 2001.[25] The Court affirmed the Court of Appeals decision, and held the restriction against challenging existing welfare law violated the First Amendment.[26] Also, the opinion by Justice Kennedy distinguished Rust v. Sullivan in holding “advice from the attorney to the client and the advocacy by the attorney to the courts cannot be classified as governmental speech even under a generous understanding of the concept.”[27] Justice Kennedy did not address any of the other regulations imposed by Congress. However, Burt Neuborne stated in his 2001 article that the decision “offers principled support for the simple notion that civil legal representation of the poor is important.”[28] Also, Neuborne stated his desire to continue litigation against the 1996 restrictions. “Justice Kennedy’s ruling raises serious questions about the validity of some of them, and in remand proceedings the courts will fully adjudicate the claims against the restrictions.”[29] Mr. Levine was not surprised by the Supreme Court’s decision and planned to continue to defend the remaining restrictions.
Following the Supreme Court decision, the case was remanded back to the District Court and heard by Judge Block. Velazquez v. LSC was combined with a second case filed by the BrennanCenter captioned, Dobbins v. LSC. The plaintiffs moved to enjoin enforcement of the program integrity requirements which included the private money restriction and physical separation requirement. The private money restriction “extends other LSC restrictions to limit the use of non-LSC funds by LSC recipient programs.”[30] Also, the physical separation requirement requires a “physically separate organization if they wish to use any of their non-LSC funds to finance the restricted activities.”[31] Finally, the plaintiffs “challenged three specific LSC restrictions…prohibiting class actions, public interest solicitation, and claims for attorneys’ fee awards.”[32] The plaintiffs were successful in obtaining a preliminary injunction against LSC from enforcing the program integrity requirements.[33] The District Court did reject the challenge against restrictions prohibiting class actions, public interest solicitation, and claims for attorneys’ fee awards.[34]
The District Court based its holding on a theoretical example exploringthe necessarycost for an LSC funded legal aid organization to comply with the program integrity requirements. In the hypothetical, expenses associated with compliance totaled near eight percent of the organization’s total budget. That amount could help serve an additional five hundred clients. The District Court issued the injunction on the belief that these restrictions were an undue burden on the legal aid organization.[35]
The Velazquez case was again appealed to the Second Circuit Court of Appeals. The court of appeals vacated the preliminary injunction granted in the District Court against LSC.[36] The holding stated, “we think the District Court’s adoption and subsequent application of a separate undue burden test were error.”[37] However, the Appeals Courtaffirmed the District Court’s decision on the regulations prohibiting class actions, public interest solicitation, and claims for attorneys’ fee awards.[38] The case was remanded to the District Court to reexamine the restrictions consistent with the standard of review set out in the Court of Appeals opinion.[39]
The Court of Appeals holding was appealed by the BrennanCenter to the Supreme Court. In a recent development, the Supreme Court on October 1, 2007 refused to review the court of appeals decision.[40] Velazquez will now return to the District Court, which will apply the new legal standard to the merits of the case.[41]
LSC counsel, Alan Levine stated that he foresees the BrennanCenter continuing its litigation on these restrictions into the future. LSC funded organizations have not focused efforts on creating an administrative solution to work within the regulations. Instead, the focus of the BrennanCenter has been solely to destroy the regulations. After remand from the Court of Appeals, Levine does not believe that Judge Block will be able tosustain the framework created in his previous decision. However, he sees continuing litigation of these issues for the foreseeable future.[42]
Mr. Levine understands the inherent dilemma in Congress supporting civil legal services that includes affirmative litigation against their legislative actions. However, Levine strongly believes the government should support legal services for the indigent population. Civil legal services are one of the many social services people need. Although there is no constitutional right, such as in criminal law; he thinks civil legal defense should be provided as an essential social service. This service should be provided by a collaborative effort of state, local, and federal governments in addition to privately funded legal aid organizations and law firms. The political aspect of LSC funding may mean that Congress continues to impose funding restrictions. Even with the restrictions in place, Levine believes demand for services is sufficient tospend all of the LSC Congressional funding. Congress does not have to be the source for funding affirmative litigation efforts that challenge policy and legislation.[43]
The remainder of civil litigation services should be provided by privately funded legal aid organizations, law firms and individual attorneys. Levine is the chairman of the Legal Aid Society of New York, a non-LSC funded organization which provides civil legal services. The society decided at inception it would not accept LSC funding so as not to be inhibited by LSC restrictions. In addition to private legal aid providers, law firms should supplement civil services through pro bono work. Mr. Levine analogies access to justice to that of doctors providing care to the uninsured. Attorneys should understand the complexity of the legal system and work to ensure every individual has informed access to the judicial system.[44]
The BrennanCenter is an organization that has been successful in working toward access to justice for all individuals. The organization is very adamant in its fight against the LSC restrictions. A list of reasons for lifting restrictions on LSC funding can be found on the BrennanCenter website.[45] The litigation efforts will continue with the new hearing that will take place in the District Court.
The continued efforts of the Brennan Center, LSC, and Mr. Levine will be helpful in achieving greater progress in obtaining legal services to all facets of the population. Their lobbying of Congress for additional public funding in addition to greater private sector involvement will help in providing civil legal services. Although the parties are adversaries in court, the organizations are essentially working towards the same purpose.
[1]What is LSC, last viewed 10/05/07
[2]Id.
[3]Id
[4]Legal Services Corporation: Fact book 2006, published 06/07 Washington, DC 2007, p.10
[5] Burt Neuborne and David Udell, Legal Services Corportaion v. Velazquez, Journal of Poverty Law and Policy, May-June 2001,p. 83, 84
[6]Legal Services Corporation: Fact book 2006, published 06/07 Washington, DC 2007,p.10
[7] Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, §§ 504, 110 Stat. 1321, 1321-51 to 1321-59
[8]Id. § 504(13)
[9]Id. § 504 (2)
[10]Id. § 504(7)
[11]Id. § 504(14)
[12] Burt Neuborne and David Udell, Legal Services Corporation v. Velazquez, Journal of Poverty Law and Policy, May-June 2001,p. 83, 84
[13]Id.86
[14]Id.
[15]Id.
[16]About Us, BrennanCenter for Justice, last viewed 10/05/07
[17]Staff Roster, Burt Neuborne, BrennanCenter for Justice, last viewed 10/05/07
[18] Interview with Alan Levine, October 5, 2007
[19] Burt Neuborne and David Udell, Legal Services Corportaion v. Velazquez, Journal of Poverty Law and Policy, May-June 2001,p. 83, 86
[20]Id
[21]Velazquez v. Legal Services Corp., 985 F.Supp. 323, 342 (1997)
[22]Rust v. Sullivan ,500 U.S. 173 (1991)
[23]Velazquez v. Legal Services Corp.,164 F.3d 757, 766
[24] Burt Neuborne and David Udell, Legal Services Corportaion v. Velazquez, Journal of Poverty Law and Policy, May-June 2001,p. 87-88
[25]Id.
[26]Legal Services Corp. v. Velazquez, 531 U.S. 533, 537
[27]Id.at 542-43
[28] Burt Neuborne and David Udell, Legal Services Corportaion v. Velazquez, Journal of Poverty Law and Policy, May-June 2001,p. 92
[29]Id.
[30]BrennanCenter website
[31]Id.
[32]Id.
[33]Velazquez v. Legal Services Corporation. 4 First Amend. L. Rev. 267, 269
[34]Velazquez v. Legal Services Corp., 462 F.3d 219, 236
[35]Velazquez v. Legal Services Corporation. 4 First Amend. L. Rev. 267, 286
[36]Velazquez v. Legal Services Corp., 462 F.3d 219, 236
[37]Id.at 229
[38]Id.at 236
[39]Id.
[40]
[41]Id.
[42] Interview with Alan Levine, October 5, 2007
[43]Id.
[44] Interview with Alan Levine, October 5, 2007
[45]