Council Begins Considering Right to Lawyer in Housing Court

Council Begins Considering Right
to Lawyer in Housing Court

Published: 
October 2016

Protesting for the right to counsel. Photo by Steven WishniaProtesting for the right to counsel. Photo by Steven Wishnia On Sept. 26, more than two years after it was first proposed, the City Council held its first hearing on a bill that would require the city to provide lawyers for more than 80 percent of the people facing eviction in Housing Court.

In Housing Court, “90 percent of the landlords are represented by counsel, but more than 90 percent of tenants are not,” Public Advocate Letitia James told a crowd of about 200 people outside City Hall. “When they represent themselves, they are evicted almost 50 percent of the time.”

“This is a bill that will give a voice to thousands of New Yorkers facing eviction because of lack of access to counsel,” Councilmember Vanessa Gibson (D-Bronx), one of the bill’s two main sponsors, said as the Council’s Courts and Legal Services Committee’s hearing began. “Housing Court is broken.”

The bill, Intro 214A, would require the city to fund nonprofit legal services to represent Housing Court defendants if they make less than twice the federal poverty level, about $24,000 a year for a single person and $48,000 for a family of four. That would cover about 128,000 of the more than 150,000 people who face eviction in Housing Court, a study commissioned by the New York City Bar Association estimated in March.

One of those is Debbie Stevens, 58, who suffers from pulmonary fibrosis and shares a five-room apartment in Bay Ridge with her autistic son. “They’ve been dragging me to court for two and a half years,” she says of her landlord.

The owner of the building she has lived in for 33 years repeatedly files eviction notices against her for refusing to let exterminators come into her apartment, she said. Because of her lung ailment, she won’t let them use Transport Mikron, a nicotine-emulating insecticide commonly used on bedbugs that has been banned in the European Union. She wants them to use a safer soybean-oil based pesticide, claiming it is her right under the “reasonable accommodation” provision of the Americans With Disabilities Act, but they won’t, she says.

Most Housing Court cases are resolved in the halls outside the courtrooms, where landlord lawyers and tenants sign “stipulations” specifying conditions to settle the case, such as the tenant agreeing to pay back rent by a certain date or be evicted. Tenants without lawyers who don’t know legal terminology, don’t speak English well, or are scared of being evicted are at a strong disadvantage.

City Councilmember Vanessa Gibson, with Councilmember Mark Levine, left, speaks at a City Hall rally Sept. 26 supporting the right to counsel in Housing Court.City Councilmember Vanessa Gibson, with Councilmember Mark Levine, left, speaks at a City Hall rally Sept. 26 supporting the right to counsel in Housing Court.

Last December, Stevens signed a stipulation agreeing to let the landlord do the extermination. “I signed because I didn’t know any better. I didn’t have a lawyer to advise me, and they had high-powered attorneys,” she says. “They were threatening to throw us out before Christmas.” The judge, she adds, told her, “If you go to trial, you’re going to lose.” She went to federal court and was able to get the order voided by a judge more familiar with disability rights. 

“My rent is $1,180. They could get $2,500,” she says. “That’s what this is about.”

Last year, just under 22,000 people were evicted after losing Housing Court cases. Tenants are 77 percent less likely to be evicted if they have legal representation, former New York State Chief Judge Jonathan Lippman testified. That also means fewer frivolous cases, he added, “because the lawyer knows there’s a lawyer on the other side.”

“The moral case alone is enough to pass this bill,” Councilmember Mark Levine, the other lead sponsor, said at the beginning of the hearing.

On the other hand, the debate over it may turn on financial issues. Can the city afford to pay for lawyers for 128,000 people? Levine argued that preventing eviction would be a worthy investment, because it would save the city money on shelter costs and mental-health services. 

A 2014 by the city Independent Budget Office projected that that the bill would cost the city an extra $100 to $200 million a year. The Bar Association study, on the other hand, estimated that if the bill were passed, it would save the city $320 million. 

The Bar Association study said the additional $199 million the city would have to spend on counsel for indigent tenants would be outweighed by savings on providing shelter and social services for more than 6,000 people who became homeless after being evicted and on not having to replace an estimated 3,400 low-rent apartments lost to vacancy increases. (The IBO study did not account for potential savings on preserved affordable housing, while the Bar Association study didn’t account for reduced federal aid for shelters.)

The right-to-counsel bill has been cosponsored by 42 of the 51 Councilmembers, but there are two key names missing from the list of supporters: Speaker Melissa Mark-Viverito and Mayor Bill de Blasio. 

The de Blasio administration has increased the amount of money spent on legal services and eviction prevention tenfold since 2014, Human Resources Administration Commissioner Steven Banks told the committee. That has brought the number of tenants in Housing Court who have lawyers up from 1 percent in 2013 to 27 percent last April, according to a report released in August by the city’s new Office of Civil Justice. The 22,000 evictions last year were 24 percent less than the record of nearly 29,000 in 2013, according to city statistics released in February.

In his testimony, Banks, a longtime advocate for the homeless, sounded many of the arguments used by supporters of Intro 214A. “Providing legal services is much less expensive than the cost of a homeless shelter,” he said. “And of course, no price can be put on averting the human costs of homelessness.” 

Nevertheless, he did not explicitly endorse the bill, saying “we are reviewing the impact of the proposed legislation regarding the provision of counsel in Housing Court on the programs that we have funded and are still ramping up.” In fiscal 2017, Banks said, the city will spend more than $110 million on legal services for low-income residents. That will include the Homeless Prevention Law Project, which provides legal services for people facing eviction, and the Anti-Harassment and Tenant Protection program, which tries to avert evictions before they go to court. 

While there are 60,000 people staying in city shelters, that number would be 7,000 higher without those programs, Banks added.

 

Debbie Stevens of Brooklyn talks about her experiences representing herself in Housing Court.Debbie Stevens of Brooklyn talks about her experiences representing herself in Housing Court.

‘Civil Gideon

The right to have a lawyer appointed if you can’t afford one was established in criminal cases by the Supreme Court in the 1963 case Gideon v. Wainwright. But the Court refused to extend that to civil cases in 1981, in Lassiter v. Dept. of Social Services. In a 5-4 decision, it held that a North Carolina woman, Abby Gail Lassiter, was not constitutionally entitled to have a lawyer in the proceeding that terminated her parental rights to her son.

“It is the defendant’s interest in personal freedom, and not simply the special Sixth and Fourteenth Amendments right to counsel in criminal cases, which triggers the right to appointed counsel,” Justice Potter Stewart wrote for the majority.

Some consider the Lassiter decision ripe for reconsideration. “I believe that the unique importance of a parent’s interest in the care and custody of his or her child cannot constitutionally be extinguished through formal judicial proceedings without the benefit of counsel,” Justice Harry Blackmun wrote in his dissent, saying that the majority was avoiding “the obvious conclusion” implied by the Gideon case. 

The decision was also colored by that Abby Lassiter had not showed up for the hearing where her baby son was put into foster care, hadn’t tried to find out how he was doing for more than two years, and was in prison for murder when the state moved to terminate her parental rights. 

Judge Lippman said it is unlikely the Court will overturn the Lassiter decision, but if the Council passes the right-to-counsel bill, New York City could lead “a revolution in access to justice” that would rival the impact of the Gideon case.

“There’s a crisis in access to justice in this city, this state, and this country,” he testified. “Poor people and people of modest means are falling off a cliff.”