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Legal Services Now Can Help Poor Sue Government Over Welfare Laws

Law: A divided Supreme Court strikes down a restriction on lawyers that the majority said created a two-tier justice system.

March 01, 2001|HENRY WEINSTEIN | TIMES LEGAL AFFAIRS WRITER

In a victory for poor people, a sharply divided Supreme Court ruled Wednesday that federally funded legal services cannot be barred from challenging welfare laws on behalf of their indigent clients.

Citing the 1st Amendment, the high court on a 5-4 vote overturned a restriction imposed by Congress in 1996 that barred Legal Services Corp. lawyers from suing the government over the effects of welfare laws, including massive reforms sponsored by President Clinton.

Justice Anthony M. Kennedy, writing for the majority, said the restriction violated free-speech rights, distorted the legal system and illegally insulated federal laws from legal attack.

"The Constitution does not permit the government to confine litigants and their attorneys in this manner," Kennedy wrote. If the restriction were upheld, he said, it would create "two tiers" of justice, causing the courts and the public to "question the adequacy and fairness" of representation in instances where lawyers were operating under such prohibitions.

Kennedy was joined by the court's more liberal justices, John Paul Stevens, David H. Souter, Ruth Bader Ginsberg and Stephen G. Breyer.

The Legal Services Corp., which distributes about $300 million each year to hundreds of legal services programs across the country, has long been a target of conservatives. In 1996, Congress added numerous conditions to the program's funding, including prohibiting class-action suits.

Legal Services Corp. officials disliked the new restrictions but accepted them, fearing that otherwise their program would be abolished.

Indeed, the organization's current leadership, as well as the Justice Department, defended the welfare-law restriction before the high court. They cited a 1991 case in which the Supreme Court upheld a restriction that prohibits doctors employed by federally funded family planning clinics from discussing abortion with their patients.

But the court's majority rejected that argument. Kennedy noted that the court has since explained that the counseling activities in that case amounted to governmental speech. Consequently, the government could regulate its own message to ensure that it is "neither garbled or distorted" by a government grantee, he wrote.

However, that rationale does not apply where a Legal Services Corp. lawyer speaks on behalf of a private, indigent client, Kennedy said. "The LSC program was designed to facilitate private speech, not to promote a governmental message," he wrote.

In dissent, Justice Antonin Scalia said the restriction does not directly regulate speech. "It neither establishes a public forum nor discriminates on the basis of viewpoint," Scalia said. His opinion was joined by Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor and Clarence Thomas.

Wednesday's ruling in Legal Services Corp. vs. Velazquez, 99-603, and U.S. vs. Velazquez, 99-960, stemmed from a challenge filed in 1997 on behalf of a New York City welfare recipient who had lost her benefits.

The Supreme Court decision "redeems the promise of equal justice under the law," said New York University law professor Burt Neuborne, who argued against the restriction. "By reaffirming 1st Amendment principles in this context, the Supreme Court is saying that lawyers for the poor are real lawyers with all the rights, responsibilities and opportunities to make arguments in court possessed by any other lawyers."

Elena Ackel, a veteran legal aid lawyer in Los Angeles, hailed the ruling, saying the restrictions created a dual system of justice where attorneys for the poor are barred from making the full range of arguments for their clients. "These restrictions hamstring us, they're very unfair," Ackel said.

Neither the Justice Department nor the Legal Services Corp. had any immediate comment.

The Supreme Court has not said whether it will grant review to pending challenges to an array of other restrictions imposed on Legal Services lawyers five years ago at the height of Republican Newt Gingrich's power as House speaker. Those restrictions, which have been upheld by the U.S. 9th Circuit Court of Appeals, led to a host of changes in Legal Services programs across the country.

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