Introduction

Good afternoon.  My name is Anne Erickson and I am President and CEO of the Empire Justice Center. We are a statewide legal services organization with offices in Albany, Rochester, White Plains and Central Islip on Long Island.  Empire Justice provides support and training to legal services and other community-based organizations, undertakes policy research and analysis, and engages in legislative and administrative advocacy.  We also represent low-income individuals, as well as classes of New Yorkers, in a wide range of poverty law areas.

I want to thank Senate Conference Leader John Sampson, Crime Victims, Crime and Corrections  Chair Ruth Hassell-Thompson and co-sponsors of this hearing, Senators Eric Schneiderman, Eric Adams, Liz Krueger, Antoine Thompson, Velmanette Montgomery and Neil Breslin.   We also thank the Senate for making this final hearing a joint hearing with the Assembly and we thank Assembly Judiciary Chair Helene Weinstein for joining us here today.

You have heard testimony today and at your earlier hearings about the looming crisis in IOLA and the severe downturn in its revenues driven by historically low interest rates being paid on these accounts.  You will hear much today about the need for legal services and their cost-effectiveness.  You will hear from those directly impacted by the provisions of legal assistance and the life changing force it can be. 

My testimony today  will focus on four areas: our core belief in the rule of law, the role of the Empire Justice Center in the legal services delivery system in New York, the potential solutions to the chronic shortage of stable funding for legal assistance, and the unique opportunity we have in the midst of this crisis.  Because our testimony at the previous hearing in Buffalo focused on Civil Gideon, I will not touch on that issue today, but clearly we believe that it must be part of the solution as New York moves forward in crafting policies to address the justice gap.

I present this testimony knowing full well the economic challenges we face as a state.  Indeed, as a legal services organization serving low income clients who are dealing with the very real fallout from the economic collapse, we witness our clients bearing the brunt of this crisis every day.

I also speak to you today with the belief that it is often in times of crisis that new opportunities for substantial change emerge.  The best and latest example of creatively responding to a crisis is Chief Judge Jonathan Lippman joining with the Legislative Leaders in requesting $15 million in the Unified Court System’s 2010-11 budget to help avert the IOLA crisis.

Background and context

Empire Justice (and its predecessor the Greater Upstate Law Project) has worked on access to justice issues since its inception in 1973.  GULP worked alongside the New York State Bar Association in securing the creation of IOLA in the early 1980’s.  We worked with our colleagues in New York City and the leadership of the unions that represent legal services staff to secure the first state funding during the last IOLA crisis in 1993.  These funds have become a critical and stable source of state funding.   We worked with the Assembly leadership to create the Legal Services Assistance Fund, which, funded by a targeted fee, has provided on-going support for legal services since the early 2000’s.  

We played a leadership role in the federally-driven legal services planning efforts in the mid- and late-1990’s and I chaired New York’s Equal Justice Commission up until 2006 when it issued its report Expanding Access to Justice: New York’s Next Challenge.[1]

We are a founding member of the Legal Services Funding Alliance, an alliance of the twenty legal services organizations outside New York City who work collectively to advance the civil legal needs of our clients.[2]   We work closely with the Legal Aid Society, Legal Services NYC, the LEAP coalition and the Unions in our yearly effort to restore and maintain funding for legal services.

All this is to say, we’ve been at this for a long time and I testify here today with a renewed sense of hope in the emerging partnerships we now see in New York.  

For the first time we have a Senate Majority which is embracing legal services as a top priority.  For the first time, our long-time champions in the Assembly Majority have real partners in the upper house.  And for the first time we have a Chief Judge taking a very active role in helping to problem solve on this issue with the Legislature.  This is to take nothing from the incredible tenure of Chief Judge Judith Kaye only to note that as the new Chief Judge, Jonathan Lippman is creating his own priorities, his own signature issues and we could not be more pleased to see that one of those issues will be to strengthen the delivery of civil legal services in the state of New York.

Finally, I testify here today with a challenge:  Everyone involved in this critical issue must seize this unique moment and make this the year we truly invest in justice by taking the steps necessary to make state funding for legal services a core component of the New York State budget.

The Rule of Law

On the very day that the United States was attacked on September 11, 2001, the legal services community was gathered in Albany, called together by the Judiciary for a statewide Access to Justice Conference hosted by then Chief Judge Judith Kaye and organized by Judge Juanita Bing Newton, then in charge of Justice Initiatives for the court system.  It became a horribly frantic day as the leaders of the court system literally set up command central in that Albany hotel trying to bring order to the chaos that was unfolding.  Our city colleagues spent frantic hours trying to reach family, friends and their staff.  When we gathered in stunned silence for dinner that night, Judge Kaye quietly noted that it is our core belief in the rule of law that sets us apart from those who so viciously attacked us.

We are a country grounded in the rule of law.  We are not governed by a monarchy or dictatorship; we are not ruled by the dictates of religious leaders.  We are in our most cherished and hard won constructs governed by our constitutions and the laws that flow from their core values. 

The preamble to Untied States Constitution still says it best:

“We the People of the United States, in order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common Defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

First is to the seal the union of our shared interests.  Second is to establish justice; justice before tranquility, before defense, before welfare or liberty.   For without justice, none of these can be achieved.

We have established justice over these many years by creating systems in which an impartial judiciary oversees disputes, due process is afforded to those aggrieved and everyone, presumably, is given their day in court.

We are all governed, protected and held accountable to each other through the rule of law. 

The Need for Legal Services

For most of us, our interactions with the law are few and far between.  Perhaps we need a lawyer to close on a new home or to put our wills and estates in order or to complete an adoption.  For those living on low or moderate incomes, the law plays a critical and often on-going role in their lives.  The law determines their access to critical benefits; it defines their protection from eviction and foreclosure; it establishes their right to health care and food assistance.  Many laws touch the daily lives of those on the economic edge in the most fundamental of ways.

The law in general is complicated, dynamic and ever changing.  The areas of law that most impact poor, low and moderate income households are exceedingly complex.   Take Medicaid with its vast and intricate eligibility rules, asset tests and application processes, many of which vary based on age, income level and household size.  It can be an exceedingly difficult application process, one in which a denied application can threaten one’s very life or the health of one’s children.    The laws governing unemployment benefits, disability assistance, public assistance, immigration, domestic violence, consumer protections, evictions, foreclosures, public housing and family law are equally complex. 

These are dynamic areas with constant change in law, rule and regulations.  For example, in 2009, the Office of Temporary and Disability Assistance (OTDA) which oversees basic public benefits issued 24 administrative directives, 24 informational letters and 36 general informational messages clarifying and interpreting the rules of the system.[3]   The Department of Health issued four administrative directives, 29 general information notices, an additional nine just on Long Term Care and two informational messages.[4]    Add to these two state agencies the many directives from other state agencies and any number of federal agencies and the scope of constant clarification and interpretation becomes apparent.

Appropriately, into this mix we build due process provisions and legal avenues for those adversely impacted by decisions made by those overseeing these benefits of health, safety and economic security.  We enable individuals to appeal denials and terminations before a neutral decision-maker. 

Imagine confronting these issues and trying to navigate these legally complex arenas without the benefit of counsel.   

As the New York State Bar Association noted in The Legal Needs Study: “American society today is complex and the judicial system mirrors that complexity…. 

...few middle class Americans would represent themselves in court if their access to shelter, income, food or clothing were at issue... Yet, the poor are confronted by such problems repeatedly and are often defeated due to the lack of counsel.” [5]

The Role of Empire Justice in the Legal Services Delivery System

Given this complex and ever-changing landscape across a host of substantive laws areas that impact low and moderate income households, the Empire Justice Centers plays a critical role in the legal services delivery system.  We provide a blend of training and support services; direct legal assistance and impact litigation; and policy analysis and advocacy.  Each of these services builds on and informs the other.

For example, through our direct services in Monroe County, we began to see clients with exotic, non-traditional mortgages in trouble in the late 1990’s.  We began looking more closely at the patterns, secured local funding to provide deeper services to this increasing number of clients facing foreclosures and began to develop expertise.   In early 2007 we produced a report on the growing foreclosure crisis and in it provided the background on the issue along with detailed zip code level analysis indicating where current loans were already in foreclosure or past due on payments.  This research and the advocacy that followed helped shape the enactment of some of the strongest foreclosure protections in the county along with unprecedented funding for housing counseling and legal assistance. 

Today we are able to provide statewide training, support and technical assistance in this critical area so that legal services and pro bono attorneys across the state can better meet the needs of their clients in what is a new and daunting area of practice for many of them.

Our current areas of focus include civil rights, education and special education, employment, consumer (foreclosures, predatory lending, pay day loans),  C.A.S.H. (low income tax assistance and financial literacy), public and subsidized housing, disability benefits, domestic violence, family, immigration and immigrant access to benefits, language access, public assistance (including cash assistance, Food Stamps, child care and child support) and health, (including Child Health Plus, Family Health Plus, Medicaid and Medicare Part D).

Training, Support, Technical Assistance and Information Sharing

A core part of our mission is to provide support and assistance to the local and regional legal services offices across the state – primarily those outside of New York City.  We work to keep the community as informed and up-to-date as possible on any changes that will impact the rights and responsibilities of their clients. 

Our support is provided by our most senior and experienced staff and ranges from the active monitoring and participation in numerous substantive law listservs, to being available to individual legal services staff to review legal documents, to staffing and leading a number of substantive law Task Forces which bring legal services staff together, generally on a regional basis, to share information and help spot and address emerging issues.

We have been an accredited provider of Mandatory Continuing Legal Education (MCLE) since May 1998 and we are now accredited to provide credits through non-traditional formats, including web-based and archived trainings.

In 2007, we conducted 83 training events, with a combined attendance of 2,222 participants.  We offered 307 CLE credit hours to assist legal services staff in meeting their continuing legal education requirements.  

We ran 23 Task Force meetings which brought together staff from around the state who work in targeted substantive law areas for information sharing, short CLE presentations and an opportunity to strategize on cases and case development.

We continue to publish two legal journals – our general Legal Services Journal and the more targeted Disability Law News.   Each is published six times a year; they are e-mailed to the community and posted to the web.  In 2007, the LSJ was downloaded 1,471 times and the Disability Law News was downloaded 2,242 times.

We run a vibrant and dynamic website that has become a critical resource to the legal services community, providing access to information on changes in law, rules and regulations, alerts on emerging legal issues and updates in a host of substantive law areas including: Child Care, Child Support, Civil Legal Services, Civil Rights, Consumer and Community Development, Disability, Domestic Violence, Education, Employment, Health, Housing, Immigration, Language Access and Public Benefits.

In 2007, the website had over 2.3 million hits, an average of 6,467 per day.  Page views numbered over 1.7 million and there were 345,968 sessions, an average of 948 per day.  Some 879,715 pages of materials were accessed during 255,869 visits to the On-Line Resource Center which had 3,405 registered Fair Hearing Bank users who had access to 2,317 searchable summaries and full decisions.

Working with the Western New York Law Center, we added an On Line/On Demand Training Center to the On Line Resource Center. We have an initial library of 19 taped trainings that provide CLE credit to eligible attorneys; in its first year, these trainings were viewed by at least 721 individuals for a total of over 437 viewing hours.

Legal Assistance: Individual Legal Representation

In addition to our training and support services, we also provide direct legal assistance to those in need.

In Rochester we are one of the core legal services providers, with our staff handling cases that involve disability benefits, special education, civil rights, specialized legal assistance for those living with HIV/AIDS,  and consumer law – including foreclosures and predatory lending. 

In our other offices we have tried to complement and supplement the local delivery system.  For instance in the Capital District we have a small project where we provide legal assistance to immigrant victims of domestic violence, with clients coming to us through referrals from the three local DV shelters. 

We also provide targeted foreclosure legal assistance in the greater Albany area, but with new state funding in this area of law, the Legal Aid Society of Northeastern New York will expand its capacity, and we’ll provide more training, support and technical assistance and less direct representation. 

Our White Plains office, where we have three bilingual attorneys housed in two small offices on the Pace Law School Campus and in Mt. Vernon, we provide legal assistance to immigrants, primarily immigrant victims of domestic violence, handling everything from VAWA self petitions to specialized U visas to naturalizations and work authorizations.  We work closely with small community-based organizations throughout the region, providing technical assistance and support to their staff and taking direct client referrals of immigrants in need of legal assistance. 

Our Long Island office provides a combination of public benefits and immigrant representation.  Thanks to funding from three community foundation grants and support from IOLA, we now have a three-person office on the campus of Touro Law School and we have just started out stationing our paralegal at one of the local Hispanic agencies – Pronto – for intake on a weekly basis. 

In 2007, we closed a total of 837 individual cases, impacting 13,763 people.  37% of those cases were in income maintenance and public assistance, including SSI; 15% dealt with individual rights, including immigration issues; just over 14% were in the area of education; and another 14% were in housing, including foreclosures and predatory home loans.

Through our work, we generated $2.15 million in awards and settlements for these clients, in addition to the benefits generated by our impact litigation.  In addition to benefits we generated for our clients, under our disability advocacy program we generated over $500,000 in cash back to the state from the federal Social Security Administration in the form of interim assistance payments.

More recently, in 2009, we estimate that our work resulted in more than $160.5 million in benefits to low-income New York residents — about $30 for every dollar we received in 2009.

We struggle to maintain these services as the need continues to increase.  Like every legal services program in the state, we are turning away far too many people in need of assistance.  It is not only heartbreaking for our staff, it also causes further disruption and increased emergency needs among our clients.

IOLA and state funding are critical to our survival.

Immediate Actions Needed to Secure Access to Justice

Avoid disaster.  As you have heard from the Executive Director of the Interest on Lawyer Account Fund (IOLA), we face a disastrous dislocation of services if something is not done to back-fill the more than $15 million that has been lost due to the historic near-zero interest rates currently being paid on IOLA accounts.  Supporting IOLA to maintain existing funding levels will help avoid complete meltdown in the legal services delivery system.
 
The $15 million proposed in the Unified Court System’s budget is not an expansion or increase in funding; it will simply allow the maintenance of current efforts.

Protect the base.  Restore and maintain all current funding, including the Assembly’s on-going support and the Senate Majority’s new financial commitment. 

This cannot be a zero sum game where funding provided to IOLA to avert disaster leads to reductions in other critical state funding.

Finally, create long-term solutions now.

New York first provided general support for the delivery of legal services in 1993 when the Assembly Majority responded to that day’s dramatic decline in IOLA funding.  One of the criticisms of New York’s approach to state funding since then is that it is purely driven by legislative add-ons.  Frankly, we consider this a blessing because were it not for the Assembly Majority’s legislative adds over the years there would not have been any general support for the delivery of legal services in any state budget over those many years.  So we again thank the Assembly and we thank the Senate Majority for so quickly doing its part this year by including additional legislative funding in this year’s budget.

Given this new and exciting partnership now emerging between the two houses and among the branches of government, this is the perfect moment to move this funding process more formally and permanently into the initial budget making process so that the state’s investment in access to justice finally and appropriately becomes part of the base budget of the State of New York.

It should be noted: we are not talking about some special interest, but an obligation of the state to meet the core values of our democracy.

Creating Core and Stable State Funding

The ultimate goal must be a significant, stable and reliable source of state funding so that programs can budget and plan in a more orderly fashion.  We have spent close to twenty years watching state funding for legal services be added to the budget each year only to see it eliminated in the Executive Budget in the following year.  Clearly we had our political challenges, but we are the only state in the nation to play such a grueling annual budget game when it comes to funding such core values.  This needs to stop.  State funding for legal services must be built into the state budget – every year, from the start. 

This will require an entity within state government that has clear budget making authority and is at the table throughout the budgeting process.  We believe the appropriate “home” for civil legal services is with the Office of Court Administration (OCA).

Revenue Options

To generate the level of funding needed will require a combination of new revenue from dedicated sources likes fees and fines and an increased general fund commitment.  Just as the health and education system are not expected to be self-funded through fees and charges neither should the justice system. 

Clearly new revenue sources must be identified, agreed to and established.  There are others in this room with much more detailed information about the various court fees, fines and other potential revenue options, what they currently generate and how they compare to fees in other states.  We should review that information and identify the most promising source or sources of new revenue that are appropriate to begin to meet the vast unmet legal needs in this state. 

Using fees to support legal services is not entirely new.  As noted earlier, the Legislature, at the urging of the Assembly, created the Legal Services Assistance Fund in 2003 by dedicating a portion of a fee increase to support legal services.  In this case the fee identified was the fee charged to conduct a criminal records search.  And most other states use some combination of fee and legislative appropriations to fund civil legal services.

We believe that a promising approach is the one chosen by California last year in funding its civil right to counsel project.  To fund these efforts, California will now impose a modest filing fee for civil judgments.  It is only after a litigant is successful that the fee is imposed, ensuring that it does not act as a bar to the front door of the court.

Clearly revenue options must be part of any long-term solution.  At this point, we strongly believe that no revenue source should be “off the table” until a full review has been conducted of anticipated revenue levels and any adverse impact such a revenue stream may have on access to justice.

Creating the appropriate structure for the administration of these funds

As noted, we believe this is best housed in OCA and envision perhaps a small but focused unit within OCA to assume responsibility for state funding for legal services. 

Other functions of this entity or unit could include developing an annual report to the Governor and Legislature on the status of legal services and the level of unmet need; development of annual budget recommendations; coordination of funding streams; development of uniform reporting requirements;  and oversight and administration of state funding.

Creating principles and guidelines for the distribution of state funding

To the greatest extent possible, distribution of new state funding should be done on a formulaic basis using poverty data.  For example, by statute, IOLA’s civil legal services (CLS) funds are distributed based on each region’s share of the state population living under 100% of poverty.   The state may want to do the same, or it might distribute some of its funds based on 200% of poverty to recognize the legal needs of more low to moderate income households.  This would be consistent with the eligibility levels for a number of our health programs and is used by OTDA in the use of some of the state’s Temporary Assistance to Needy Family (TANF) block grant funds.

Distribution must encompass the full range of services, including training, support and technical assistance; policy analysis, research and advocacy in areas of law impacting those in need of legal assistance; and the representation of clients in all available forums.  Funding should support volunteer/pro bono programs as well as legal services providers that meet the needs of targeted populations (for example farm workers, the elderly and rural populations).

To the greatest extent possible state funding should be used to support existing legal services providers with the clear goal of strengthening and expanding the existing delivery system.  While flexibility will be needed to meet new and emerging needs or the legal needs of newly impacted populations, the existing infrastructure and the existing needs have been underfunded for far too long. 

The first goal must be to strengthen and fund the existing delivery system.

To allow for more organized budgeting, planning and delivery of services, state funding should be allocated in such a way that provides year-to-year financial stability and embraces multi-year contracting with annual reporting and review.

Creating and Charging a Work Group

Clearly, we as providers have our role in this process, but it is you in the leadership in the legislature, who will make the final determinations, along with your colleagues in the Judiciary and in the Executive. 

In embracing access to justice as a top priority and by holding these hearings so early in the process, the Senate Majority has helped jump start the needed discussions and we again thank you for these efforts.  Much work is already underway and much more needs to be done and done quickly.

Together we must address and resolve these issues as quickly as possible so initial action to put long-term solutions in place can be taken in this year’s budget.  In order to take the discussion and the decision-making to the next level, we respectfully recommend that the Senate and Assembly along with OCA and the Executive immediately create a task force or working group to review the core issues outlined above, indentify any additional issues and make recommendations for immediate action. 

The goal must be to have issues resolved and recommendations made in time to impact this year’s budget.

As always, we stand ready to help in any way we can.

Thank you once again for the opportunity to testify today.  Please feel free to contact me at 518-462-6831 should you have any questions.

Footnotes

[1]  Expanding Access to Justice, New York’s Next Challenge, New York’s Equal Justice Commission, January 2007.

[2]  For information and materials see: http://www.empirejustice.org/issue-areas/civil-legal-services/lsfa/

[3]  “Policy Directives are issued by OTDA to keep local social services districts (LSSD) and other interested parties informed about current program policy and procedures, and other significant information impacting OTDA programs.”  See 2009 listings at: http://www.otda.state.ny.us/main/directives/2009/

[4]  New York State Department of Health, Rules, Regulations and Law.  See: http://www.health.state.ny.us/regulations/

[5]  New York State Bar Association, The New “York Legal Needs Study, Albany NY (1990, revised 1993).  This comprehensive statewide review, combining field visits, research and direct interviews with over 400 low income households, defined a “legal need” as a situation “that an experienced attorney would recognize as potentially amenable to legal relief and would, therefore, merit an attorney’s professional attention and advice.”