For more than 100 years, Minnesota has been a leader in providing legal services to meet the needs of disadvantaged people unable to afford a lawyer. Many individuals and organizations, including government, attorneys, law firms, and nonprofit organizations are involved in this effort, yet over 75 percent of the legal needs of low-income people are estimated to remain unmet, and economic forces threaten to widen the gap.
Last spring, Sharron Brown and her four children, ages 8 to 16, rented a St. Paul home ($1,800 for damage deposit and first month’s rent) only to learn soon after the city had condemned the property. They didn’t have the financial wherewithal to rent another place.
Last fall, Kristen Hopkins of White Bear Lake was fired from her $15-an-hour teleprospecting job. She was accused of employee misconduct, a charge she disputed. Her employer rejected her unemployment compensation request, money she needed to pay rent for herself and her teenage son.
Neither family could afford an attorney. In both cases, Southern Minnesota Regional Legal Services (SMRLS) represented them and kept them from becoming homeless. For Brown, SMRLS helped her get her money back, plus penalty, and her family eventually got a new place. For Hopkins, an unemployment law judge rejected the misconduct charges and awarded the unemployment benefit. The judge wrote that it appeared the company wanted “to remove an employee who was often absent due to ongoing health issues.”
“I am speechless,” said Hopkins, who said she had missed a lot of work because of uterine cancer and a hysterectomy. “I don’t know what I would have done had I not won.”
Free civil legal services help low-income people such as Hopkins and Brown resolve their individual crises, but advocates say the services save government money, too. On the front end, Legal Aid andpro bono attorneys discourage people from pursuing losing cases. In court, they help cases run more smoothly and settle more quickly. Lastly, they give people on the financial edge a fair chance to be heard. And if they win, it could prevent more costly government services long term.
Judges and court administrators know well the challenges created by self-represented litigants. Tenth District Court Administrator Michael Moriarity said they make procedural mistakes that create inefficiencies and require rescheduling. “Try as they might, they don’t always fill out forms correctly,” he said. “They don’t know what to do or how to do it.”
The Minnesota Legal Services Coalition, an association of seven regional legal services programs, estimates that its services save the court $5.1 million annually by winnowing—helping more than 3,000 cases settle pretrial or out of court, or screening them out for lack of merit. The Coalition tallies other savings, from securing $4 million in child support payments that reduce welfare costs to resolving landlord-tenant problems that would otherwise increase homeless shelter use.
Jeremy Lane, executive director of Mid Minnesota Legal Assistance (MMLA), a Coalition member, said of Legal Aid: “If we didn’t exist, the justice system would have to invent us.”
Violence Down, Savings Up
Access to legal services reduces domestic violence, according to two economists who published their findings in Contemporary Policy Issues in 2003. Legal Aid attorneys point to the study as one more way the system pays for itself.
The study examined how county-level domestic abuse rates varied with availability of various public services—shelters, hotlines and a list of others. Author Amy Farmer, professor at the University of Arkansas, said she and Prof. Jill Tiefenthaler of Colgate University weren’t focused on legal services at the beginning. “We found that legal services were the only variable that was significant, and they were very significant,” she said.
Reducing domestic violence saves money—in police time, court time, prosecutor time, jail time and health care. Long-term, it could save money by reducing violent behavior that children learn when growing up in violent homes. Most importantly, reducing domestic violence reduces human suffering. The Coalition’s seven Legal Aid programs secured protection for 6,000 Minnesota families facing domestic violence in 2007.
Katie Trotzky, executive director of Legal Assistance of Dakota County, said her program focuses on family law and 70 to 80 percent of its clients experience domestic violence, either themselves or their children. Helping resolve their divorce and custody cases focuses attention on sources of such conflict—financial support, who picks up the children, where parents meet, and how they talk or don’t talk. Without clarity on these disputes, couples and their families remain at risk.
Court decisions help define that physical separation between parents, Trotzky said. “We solve the long-term problem.”
Demand Outstrips Supply
Minnesota has many legal services programs to assist the poor; most are either Legal Aid programs where full-time staff handles cases, or pro bono programs which tap private bar volunteers. Some programs serve geographic areas, such as SMRLS; others serve the legal needs of particular communities, such as people with HIV/AIDS or immigrants. Legal Aid programs have been around for a century. For many years, they ran on charity.
Minnesota now ranks number one in the country for state support of civil legal services, on a “per poor person” basis, according to 2007-08 data compiled by the New York-based Empire Justice Center. Still, no state comes close to meeting the need. The Minnesota Supreme Court’s Legal Services Planning Commission issued a 2005 report saying in Minnesota, as in the rest of America, “perhaps more than three-quarters of the legal needs of the disadvantaged go unmet.”
Federal funding allows programs to serve people making up to 125 percent of poverty. (For 2009, that means single people making up to $13,538 a year or a family of four up to $27,563.) State-funded programs generally cap eligibility at 200 percent of poverty. (That covers single people making up to $21,660 a year or a family of four up to $44,100.)
With people losing jobs and income, service providers say more and more people will qualify for help—and need it.
Two Justice Systems
Target, 3M and other employers are laying off staff by the hundreds, so perhaps it is not surprising that government and nonprofit programs also face financial hits. Yet these cuts in public services tend to fall hardest on those who have the least. James Swenson, chief judge in the 4th Judicial District, has warned of creating two justice systems, one for the well-off and one for everyone else.
In this economy, low-income people increasingly need help with housing, bankruptcy, and foreclosure, as well as divorce, domestic abuse, complex government benefit issues and more. (See sidebars) Without lawyers, people often don’t understand the laws and can’t make effective use of the third branch of government—the courts. Ill-prepared and on their own, they might unfairly lose their apartment damage deposit, miss public benefits for which they qualify, or remain stuck in an abusive relationship.
Civil legal services programs are preparing for cuts. Legal Assistance of Dakota County expects to lay off one of its three attorneys in July. SMRLS chief operating officer Gary Hird said he believes most programs are leaving positions open through attrition. Lane said even if the legislature gave Legal Aid programs their requested increase, programs face certain shrinkage because all funding sources are challenged, including philanthropy.
“We are still going to be smaller two years from now than we are now,” Lane said. “There are too many other things happening.”
A Brief History
Most of the financial underpinnings for family law and other Legal Aid and pro bono services are weakened. Here’s a quick overview of how the system developed.
Federal support for Legal Aid started during the 1960s War on Poverty. In 1974, a bipartisan congressional effort created the Legal Services Corporation (LSC) to fund it. Money increased during the Carter years; then the Reagan administration tried to zero it out. The American Bar Association organized a lobbying effort in the spring of 1981—120 bar leaders, judges and private attorneys from 43 states went to Washington D.C., a news account said. David Brink, senior partner with Dorsey & Whitney at the time, was ABA president-elect. “We saved the LSC in Congress,” he said in a recent email exchange.
Still, LSC funding was cut 25 percent for 1982 and future funding was far from certain. MMLA’s Lane said Minnesota responded quickly. In 1982, the Minnesota Supreme Court approved a dedicated court-filing fee to support civil legal programs. Legal Aid stepped up direct fundraising. Also in 1982, The Fund for the Legal Aid Society held its first Law Day Dinner, raising $50,000. In 1983, Minnesota Supreme Court approved a mandatory Interest on Lawyers Trust Accounts (IOLTA) law to support civil legal services, only the second in the country after California.
Fast forward to 1997, and Minnesota was first state to earmark an attorney registration fee increase for Legal Aid.
Lane said in many states, the bench and bar have seen themselves in a hostile relationship with
Legal Aid. By contrast, Minnesota has had a strong partnership for decades. “We got in the door very early,” he said. “Many of these states are late to the game.”
The latest advocacy push is “Civil Gideon.” In 1963, the U.S. Supreme Court decision Gideon v. Wainwright established a right to counsel for those charged with a crime and too poor to afford an attorney. In 2006, the ABA’s House of Delegates recommended U.S. jurisdictions expand Gideon’s right-to-counsel requirement to civil cases involving basic human needs, such as shelter, sustenance or child custody.
The Minnesota State Bar Assembly (MSBA) created a Civil Gideon Task Force in 2007 to explore the issue. Any new initiative faces an uphill battle, given the significant financial challenges ahead, and considerable effort will be necessary to avoid losing ground already hard won.
The governor and Minnesota legislature are wrestling with a budget deficit—$4.8 billion next biennium and growing—and many pressing needs, including K-12 education, health care for the poor, and civil legal services. During the next few months, legislators will debate whether to make across-the-board cuts, vary the cuts program by program, raise taxes to mitigate cuts, or implement some combination of these.
The key pieces of the civil legal services funding puzzle follow.
- LSC: Former ABA President Brink said while lobbying efforts preserved the LSC in 1981, requests for increased funding since then haven’t borne fruit. Minnesota received $4 million from LSC in 1981 and $3.6 million in 2008. Factor in inflation, and the loss is greater. LSC money is roughly 10 percent of Minnesota’s civil legal services funding.
- State Appropriations: The Legal Services Advisory Commission (LSAC) funds roughly one-third of civil legal services. (The LSAC money is in the Supreme Court’s budget.) The coming biennium was problematic before the economic downturn. The legislature’s $13 million-plus annual appropriations for the Judicial Branch in 2008 and 2009 included a one-time $1 million boost. For the next biennium, the Supreme Court requested $14.2 million a year—that adds back the one-time money, plus another $1 million. The governor’s budget proposes $11.6 million a year—reflecting the loss of the one-time money and another $600,000 cut.
- IOLTA: With interest rates at rock bottom, Interest on Lawyers Trust Accounts (IOLTA) funds are ailing here and nationally. Minnesota’s IOLTA generated between $3.2 million and $3.8 million a year for fiscal years 2006-08, with part diverted to reserves. Reserves will buffer cuts, but overall grants will drop 17 percent next biennium.
- Philanthropy: Private foundations, law firms, corporations, United Way, and individual giving provide 29 percent of civil legal services funding. Each is feeling the economic strain. The Minnesota Council on Foundations recently estimated overall giving would drop 4 percent this year.
- Attorney Registration Fees. Attorney registration fees generate about $1.2 million a year for civil legal services, about 3 percent. Other government contracts make up the remaining 19 percent of funding.
Supreme Court budget documents for the current biennium say without the requested state LSAC increase, “over 5,000 additional families facing crisis situations will go without needed legal assistance.”
Pro Bono Solutions
Pro bono services are part of the solution. Still, pro bono work isn’t free. Programs need staff to screen clients for eligibility, recruit attorneys, coordinate schedules, train volunteers, and provide support for clinics.
In many parts of the state, Legal Aid programs coordinate pro bono services. Minnesota has two independent programs: Volunteer Lawyers Network (VLN) in Hennepin County and Duluth-based Arrowhead Lawyers Care—Volunteer Attorney Program. Both programs receive significant state grants—the same funding slated for cuts.
In 2008, Arrowhead Lawyers Care received $405,000—most of its revenue—from either direct state appropriations or IOLTA. Executive Director Patty Murto said two staff members were laid off in December. Now she is down to five, counting herself. Given the coming state cuts, she expects to lose one to two more staff in June. Yet “the need is crazy,” she said. “Requests for bankruptcies are skyrocketing.”
“We will try not to eliminate anything,” Murto said. “What we will wind up with is longer waiting lists. People may sit on a waiting list for a divorce for a year and a half or two years.”
The state is also VLN’s largest single funding source. Executive Director Suzanne Pontinen said the areas needing attention include bankruptcy, debt collection defense and mortgage foreclosures. VLN has always worked in strong partnerships with Legal Aid, including jointly staffing a housing law program. “In a time like this, that pro bono partnership is more important than ever,” she said. “We help the private bar step up and fill some of the need.”
While all pro bono programs face potential cuts, metro area programs such as VLN are relatively rich in one resource—potential volunteers. According to Legal Service Planning Committee (LSPC) maps, a number of rural counties—such as Murray, Morrison and Traverse—have few attorneys compared to the number of people in poverty. (The Judicial Branch created the committee to review data and find solutions to unmet civil legal needs.)
Peter Knapp, a William Mitchell law professor and LSPC chair, said the mapping project showed parts of Greater Minnesota needed new strategies to get more people help. The project is in its early stages. “We have come a ways down the road,” he said. “There is a long ways to go.”
In addition, the MSBA’s Legal Assistance to the Disadvantaged Committee is considering ways to support Legal Aid and pro bono services. One option: Create “emeritus pro bono” status, a proposal to give attorneys a registration fee break if they do only pro bono work.
Several dozen legal assistance organizations, from the United Cambodian Association to the Indian Child Welfare Law Center, receive small grants from the state appropriation and/or IOLTA. Cuts would affect them, too.
Lynn Mickelson is the legal services manager for the Minnesota AIDS project. It helps people with HIV/AIDS address benefits issues, debt problems and estate planning. State grants are 21 percent of the project’s $140,000 budget. Cuts would reduce the number of people served, she said.
The Immigrant Law Center of Minnesota gets some state money, but is also very foundation-dependent, said Executive Director John Keller. Getting new foundation money will be difficult. The Center is developing a law firm campaign as well as making more intentional donation requests to clients and former clients.
The Minnesota Justice Foundation (MJF) gets nearly one quarter of its $570,000 budget from the state. It supports student volunteers at the four metro area law schools. They logged 30,000 hours last year, primarily with Legal Aid programs. Among other things, that money pays for travel, meals and lodging for students to volunteer at clinics in Willmar, Mankato and other Greater Minnesota cities.
Also facing potential cuts is the Loan Repayment Assistance Program of Minnesota. It provides financial help so law school graduates with large debt loads can afford to work in public interest law. Legal Aid offers bottom-rung attorney compensation, with starting salaries around $40,000 a year. The Assistance Program gave out $170,000 in grants last year to more than 60 lawyers—three-quarters of the money came from the state. State cuts could mean fewer grants, smaller grants or both.
System Under Stress
All aspects of the court system—public defenders, court staff and civil legal services—face funding and staffing challenges. And funding cuts to any piece of the system affects the others. The net result, advocates say, is delayed hearings, increased errors, added inefficiencies—and less justice.
Chief Justice Eric Magnuson invited justice system partners to create a Coalition to Preserve Minnesota’s Justice System, a united front to protect the justice system.
“In tough economic times, we must return to the basics,” Magnusson said. “One of those, mandated by our state constitution, is an adequately funded justice system that resolves disputes promptly in order to ensure the rule of law, protect public safety and individual rights, and promote a civil society.”
Averting Unlawful Eviction
Bao Her, Fong Lee and their three children—two toddlers and an infant—faced eviction from their St. Paul apartment last fall after Lee lost his machine operator job.
Lee applied for unemployment insurance, but as of early November his checks hadn’t started, Her said. They explained their situation to the landlord and made a partial payment towards their $700 rent. The landlord continued “calling me and harassing my family,” she said. “He felt like he had the authority to come in and out of my apartment. … I didn’t know my rights. I was scared.”
On Nov. 17, the landlord filed an unlawful detainer. On the advice of a county worker, Her contacted the Southern Minnesota Regional Legal Services (SMRLS), a Legal Aid program covering 33 counties, including Ramsey.
For Her’s family, getting legal help meant the landlord stopped entering the apartment uninvited, she said. Then attorney Nicole Evans helped Her and Lee countersue. The family had lived in the apartment for two years and the unit was in disrepair from the start. According to the court’s findings, the apartment’s oven, water heater and heating system all malfunctioned. The unit also had broken windows, ill-fitting doors, peeling linoleum and a roach infestation. (The landlord provided no evidence that the tenants caused any of the problems.)
Certainly there are good landlords, bad tenants—and situations where landlords lose rent and suffer apartment damages they cannot recover. Funding civil legal services doesn’t mean tenants are blameless in a dispute; it does mean that low-income tenants get a fair chance in court. For Her and Lee, it meant that the court dismissed the unlawful detainer and awarded them a $4,200 rent abatement for January 2007 to December 2008.
Had they been evicted, Her said she would not have known where to go. “I don’t have any family here,” she said. “We probably would be homeless.”
If evicted, here’s what would have happened. The family would have had to figure out how to move and store its possessions—quickly. With an eviction on their record, they would have had trouble renting a new apartment. If they found one, they would have needed money for damage deposit and first month’s rent. That could be challenging, depending on whether the landlord returned the damage deposit in a timely manner.
The Minnesota Legal Services Coalition, a group that includes SMRLS, estimates that its programs collectively prevent homelessness in more than 2,650 cases statewide annually.
Gary Hird, SMRLS chief operating officer, said staff does intake on Monday and Friday mornings and Wednesday afternoons for people who are on the brink of eviction or homeless.
“We have seen a change in the last six months,” he said. “It has picked up dramatically.”
Reducing Reliance on Minnesota
Legal Aid helps low-income people qualify for federal benefits, and that can save the state money.
Consider Pamela Schaaf of Oakdale, mother of four—two adult children and two youth. She was diagnosed with multiple sclerosis in 2003 when she was losing sight in her right eye, she said. Three years later, she started losing sight in the left eye and now is legally blind. She lives with her adult son. Her mother helps her take care of her kids.
According to her Southern Minnesota Regional Legal Services attorney Laura Melnick, Schaaf had been receiving $203 a month in state-paid General Assistance (GA), and General Assistance Medical Care. Before going to Legal Aid, she applied for federal Supplemental Security Income, or SSI, a need-based program that supports people who are aged, blind or disabled. SSI turned her down.
Without further help, Schaaf said she would have accepted the denial. “I didn’t know any of the other legal processes,” she said. “I would have left it at that.”
Melnick got the necessary medical records, talked to Schaaf’s neurologist and filed the paperwork. She had a strong enough case that it didn’t require a hearing. Last June, they got a favorable on-the-record decision. Not only does Schaaf receive higher benefits—$674 a month from SSI—but she also qualifies for Medical Assistance instead of GAMC. That means the federal government also contributes to her health insurance.
The Minnesota Legal Services Coalition estimates its programs help disabled people get $5 million a year in new federal benefits, reducing reliance on state-funded programs.
SCOTT RUSSELL is a freelance writer and reporter resident in Minneapolis. A regular contributor to MinnPost.com, he has previously written for Bench & Bar on topics including unbundled legal services and working with pro bono clients. This is the third of three articles he is preparing on challenges facing Minnesota’s judicial system.