Combining Legal and Organizing Tactics to Achieve a Goal

By Kathleen M. Paolo, Esq.

January 2016

National Coalition of Concerned Legal Professionals (NCCLP) is an all-volunteer organization. NCCLP started as a organization in Sacramento, California in 1976, inspired by the legal needs of organizing drives of some of the lowest-paid and least protected workers in the United States, such as domestic workers, service workers, seasonal workers, farm workers, part-time workers and independent contractors who fall outside the dubious protections of the United States labor laws.(1)

We neither seek nor accept government funding or any other funding with strings attached that would interfere with our organization’s independence. We are an unincorporated, private membership association of attorneys, paralegals, law students, small businesses and others in the community who have united to fight for meaningful access to the courts for the growing number of those lowest paid and least protected people who cannot afford an attorney.

Attorneys who were volunteering with efforts to organize in-home care workers and the aged, blind and disabled low-income recipients of their care, determined to build their own organization that could provide both legal advice and education and take on some of the thorny legal problems underpinning the economic and legal situation of these work forces. That led to the creation of CCLP, which soon spread in California from Sacramento to San Francisco, then to Los Angeles. Some of those who developed the Sacramento effort went to New York to assist with legal battles of nascent farm worker organizations and built New York State CCLP from that. By 1995, all those efforts had come together to form NCCLP.

Poverty Increasing in the United States

The percentage of the U.S. population that cannot afford legal assistance is increasing at a time when legal help is needed more than ever. The Pew Research Center found that real wages in the U.S. have been flat or falling for decades,(2) while worker productivity increased 74.4% from 1973-2013.(3) The only gains have gone to the upper income brackets where real wages have risen almost 10%.(4)

Poverty in the United States is increasing and with it, the problems that poverty brings, such as hunger, homelessness, premature death from treatable diseases and increased crime. The World Hunger Organization states that in 2013, there were 46.2 million people in the U.S. living in poverty, up from 37.3 million in 2007. The number of poor people in the U.S. is nearly the largest number in the 52 years for which poverty statistics have been published. Children in the U.S. represent 32.3 percent of those in poverty.(5)

In fact, 19.9 million Americans live in “extreme poverty,” meaning that their family’s cash income is less than one-half the poverty line, or about $10,000 USD per year for a family of four.(6) According to U.S. Census data, 1.65 million U.S. households fell below the $2 USD per day, per person threshold used to define “extreme poverty” in the developing world. The figure has more than tripled since 1996 and includes 3.55 million children.(7)

At the same time, the wealth of upper-income families in the United State is now nearly 70 times greater than low-income families, a record of income disparity,(8) where 1% of the population has 80% of the wealth.(9) The bottom 80% has only 7% among them.(10) The income of the top 1% has tripled over the last 30 years.(11) The U.S. is one of the most unequal of western nations,(12) despite the long-perpetrated “American Dream” of upward mobility, which is an illusion.

Poverty brings with it a myriad of legal issues, such as consumer protection problems where low-income persons have been victimized by unlawful practices; landlord tenant matters; mortgage foreclosure issues, such as fraud and predatory lending; debt, credit and bankruptcy; employment issues such as unfair firings and wage disputes; family law matters such as custody cases, child support issues and domestic violence; immigration questions of all types and responding to legal needs that result from natural disasters such as Hurricane Sandy in 2012.

Lack of Access to Counsel for Low-Income Workers

The low-income in the U.S. are increasingly unable to get any assistance from government entities whose ostensible mission is to provide civil and criminal legal aid. Legal Services Corporation, a federally funded entity that provides grants to legal aid offices throughout the U.S., released studies showing that LSC-funded offices turn away 50% of those who seek help. Estimates are that in New York City, 89% of those who qualify for legal aid in civil cases are turned away for lack of resources.(13)

It is no longer just the lowest-income in the U.S. who cannot afford counsel. Teachers, adjunct college professors, civil servants, small business people and others working full-time jobs, including some lawyers, have come to CCLP seeking legal advice because they cannot afford to hire a lawyer. Judges find in some states that 60% of those who come before them in civil cases are representing themselves(14) (and some reports state that 90% of tenants in landlord-tenant cases are pro se(15)), a difficult, if not impossible, feat in the complex U.S. legal system.

The United States Constitution guarantees the right to counsel in a criminal case, which the government has translated into a system of public defenders or the government-funded Legal Aid, but these offices are grossly under-funded, leaving each attorney with a caseload as high as 600 cases per year!

Statistics indicate that 97% of federal cases and 94% of state cases are disposed of through plea bargains,(16) which requires the defendant to give up his right to a trial, plead guilty, usually to a lesser-included offense in his indictment, and give up any right to appeal. The plea bargain is designed to guarantee the rapid movement of the criminal court calendar. The jury trial, which is a constitutional right and frequently depicted on U.S. television as courtroom drama, rarely occurs. In criminal cases, the defendants face intense pressure from the system to plead out their cases and save the state the cost of trying them. The prosecutor often charges high and then “bargains” the charge down with the public defender, threatening the defendant that if they don’t take the “deal,” the court will punish them severely in the final analysis.

Budget Cuts Close Courthouses/Deny Due Process

New York State’s Chief Judge, the Honorable Jonathan Lippman, stated, “When families can’t pay their mortgages or rent, when people default on credit card payments or child support obligations, when frustrations over household finances boil over into domestic violence, it all ends up as a matter on a court docket. State courts are truly the emergency room for the ills of society, and our caseloads are proof of that fact.... activity in our courts is countercyclical. When the economy goes south, the need for legal services rises.”

In the past few years the federal government and many state governments have wrought massive court budget cuts, which forecloses access to the courts. The New York State Bar Association issued reports on the budget cut ramifications, such as closed courthouses and courtrooms, shorter hours, fewer judges and court personnel and massive delays.(17) The New York City Bar Association reports that a New York Family Court judge has an average caseload of 1,533 cases per year and can only spend 52 minutes per case per year.(18) NCCLP has provided pro bono legal assistance in one Family Court matter where the mother’s parental rights are at stake, and the case has been pending for 4 years. This case epitomizes the adage that “justice delayed is justice denied,” particularly for low-income workers.

While the reduction in judicial services at first appears to affect all persons equally, the impact is much less for large businesses and wealthy individuals. Those groups can afford private arbitration and other extra-judicial alternative dispute resolution methods. Additionally, many businesses such as credit card companies, auto makers, cell phone companies and even employers and medical providers write mandatory arbitration clauses into their contracts, to which the consumer must agree or be foreclosed from the service or product. There is no access to an impartial tribunal.

The Honorable Jonathan Lippman himself recently echoed a longstanding CCLP saying that in the U.S. there is a “two-tiered system of justice: one for those with money and one for those without.”

Moreover, the current U.S. Supreme Court has handed down one decision after another closing the doors on the tactic of class action lawsuits to redress wrongs suffered by a large number of people at the hands of a corporation.(19) The Court recognized the right of the corporation to “contract,” meaning that the corporation could deny consumers access to class actions or even class arbitration as a means toward gaining recourse on an uneven playing field. In a class action, those who are harmed can combine their cases and resources to sue. In many instances the litigation costs would be prohibitive for an individual. The individual amount of damage might be small, while the aggregate gain to the corporation could be in the millions of dollars. Yet the U.S. Supreme Court has basically sanctioned the notion of rights without remedies, when it found that corporations can “contract out” of class actions by requiring mandatory arbitration.

The wealthy can also gain access to officials in the executive and legislative branches of government by making large campaign contributions. The case of Citizens United v. Federal Election Commission, 558 U.S. 210 (2010) and its progeny eliminated limits on campaign spending (and purchase of influence) by big business. In the five years since that decision, the election landscape has overtly changed with the infusion of corporate funds into the electioneering.

Prison Law as Labor Law in the U.S.

There are more than 2.4 million people incarcerated in the United States;(20) hence the term “mass incarceration.” The incarceration rates are disparate in terms of race; that is, an African American is more than six times as likely to be locked up as a white person.(21)

While the Thirteenth Amendment to the U.S. Constitution proscribed slavery and involuntary servitude, it continues to exist through the unequal enforcement of criminal laws in poor, largely minority, neighborhoods through the exception to the Thirteenth Amendment as punishment for crime.(22) The high percentage of minorities in U.S. prisons is more the result of the government using affirmatively discriminatory government policy in the execution of the laws than representative of the lawless state of individuals of one or another ethnic background. Urban governments place the largest portion of their law enforcement personnel in neighborhoods that are poor and minority, while placing the largest amount of their financial resources in cleaning up and fixing areas that are more affluent. Witness the recent massive protests erupting in city after city over police killings of minorities, pointing to the fact that police brutality is not a matter of bad cops, but rather a systemic method of governing.(23)

In today’s prison scenario, prisoners are “hired out” to private companies like IBM, Motorola, Microsoft, AT&T, Dell, Revlon, Macy’s, Victoria’s Secret, Target Stores, Honda, McDonald’s, Chevron and Bank of America.(24) Prison labor produces 100% of the helmets, ammunition belts, bullet-proof vests, ID tags, shorts, pants, tents, bags and canteens for the US military.(25) In most instances inmate pay ranges from 17 cents to $1 per hour. Several states pay inmate laborers nothing at all.

This system of profiteering contains every incentive to lock up more people and keep them locked up. The U.S. has less than 5% of the world’s population and almost a quarter of the world’s prisoners.(26) Prison industries have made the U.S. prison system a multi-billion dollar enterprise.

There is no indication, however, that U.S. prisons work to rehabilitate those who languish there. Even U.S. Supreme Court Justice Anthony Kennedy declared recently, in testimony before the U.S. Congress, that the U.S. correctional system is “broken.”(27)

Combining Legal Work with Organizing

In our nearly 40 years of organizing, CCLP organizers have acted on the premise that the solutions to a legal system that does not function for the vast majority of the population do not lie within the courts themselves. Rather, use of the law, of the courts and of lawsuits simply form a set of tactics available within an array of tactics one can employ toward a strategy for change. However, to approach the law from that vantage point requires building organization that can develop a strategy and proceed to organize the resources and the allies to carry it out. It also requires an understanding that in order for immediate change to transform into a long-lasting characteristic of our society, those directly affected by the injustices must take a lead role in defining the solutions and effecting that change. If the strategy in any situation does not involve multiple objectives, including strengthening those engaged in the fight, we have narrowed the fight to an issue. We do not see an issue-oriented approach to the problems of our legal system as productive. The struggle must always point to the larger, systemic problems.

We unite the legal work — our self-help program of pro bono legal advice, information and advocacy — with organizing in the community. Our volunteer attorneys donate their time and skills to provide presentations on areas of the law to groupings of members of organizations of low-income workers and to provide pro bono legal consultations to individuals from those groupings, aided by lay volunteer advocates. However, those legal benefits are not sufficient to bring about a systemic change in the U.S. legal system. They do, however, provide us with a grasp of the pattern of problems emerging within the low-income communities that will require more than a lawsuit or a defense of an individual.

Combining tactics to achieve a goal: farm worker housing case

In 1996 CCLP was approached by farm worker organizations in California on behalf of their membership of migrant workers returning to the Central Valley of California on a yearly basis to harvest the crops. In order to aid the growers by providing cheap housing for the migrant workers, the State of California set up migrant housing camps, open to the migrants only in the growing season, at relatively low rents, to ensure the supply of workers would return yearly to the area.

However, in 1996 the State of California illegally doubled the rents on the 26 migrant housing camps scattered around the state. The farm workers, through their organizations, asked CCLP to sue the government to stop the State from doubling the rent. While this was technically a landlord/tenant case and one that migrant legal services should have taken on against the State of California, the state-funded legal services are barred from taking cases involving suing the state. So it fell to CCLP to organize volunteer attorneys to go to court to try to get the rent rolled back.

Ultimately CCLP’s volunteer attorneys succeeded in getting an order from the court to roll back the rents. However, to get the migrant workers restitution for a season of illegally double rent payments, CCLP had to file a class action suit. CCLP worked closely with the farm labor organizing efforts and others to do repeated visits to each and every one of the statewide labor camps, calling for meetings of the workers, organizing them to the suit, and cultivating leadership from the farm workers to become the class plaintiffs representing all the farm workers involved in the case. CCLP organized affidavits from the farm workers documenting the damages they faced as a result of the doubled rent, and the labor organizing drives brought caravans of farm workers from all over the state for the court appearances.

It also required organizing allies within the legal system and the community and building a consolidated fight involving organizations statewide in sympathy with the plight of the farm workers — everything from La Raza to Catholic Charities joined in the fight. It took years of fighting before the California Court of Appeal finally held that the state had been unjustly enriched and returned the case to the district court level to proceed to trial. Through that entire period CCLP worked with the farm worker organizations, ensuring that they kept the fighting spirit of their membership high and that they engaged their members in the work of the case to keep them fighting. CCLP took volunteer attorneys out to the housing camps to brief the farm workers on the status of the case and to hold legal advice sessions on other problems the farm workers were facing.

CCLP’s volunteer attorneys began negotiating with the state’s Attorney General to force a settlement of the case on terms favorable to the farm workers. The State claimed it was broke after it had succumbed to pressure from the national utility providers who used rolling blackouts in California to force the State to pay extortionate rates for electricity permitted by the deregulation of the utility industries. At that point California had a $39 billion deficit.

CCLP decided to make an unprecedented move: CCLP approached the State Legislative committee that oversaw the Office of Migrant Services and organized them to fund the settlement. CCLP also got the Legislature to allocate additional monies to the Office of Migrant Services to stop another rent hike.

Ultimately CCLP organized the State to settle the case for $1.2 million, the amount that CCLP had sued for originally. To find the claimants, CCLP and the farm worker organizing drives again visited all the camps, contacted other labor organizing efforts along the migrant stream, contacted the Mexican Consulate, and home town organizations where the bulk of these farm workers originally came from. CCLP organized donated public service announcements on television, radio and in the newspapers. Eventually CCLP succeeded in finding and assisting at least half the claimants to file claims.

That left the other half of the settlement monies. CCLP and the class members agreed that those monies could be used to improve the camps, but ONLY if the farm workers on the camps could make the decision of what improvements they wanted. The State fought CCLP over this qualification. The State was adamantly opposed to giving voice to the farm workers. It took organizing to force them to agree to the settlement.

The residual funds totaled $385,845.00. That provided the labor organizations with the opportunity to bring together their membership on the camps and work with them to make the demands, with the farm workers learning through that how to fight and see the material manifestations of their efforts.

Through this, we uncovered camps where the water coming from their faucets was not safe to drink, building a combined demand resulting in everything from hooking up the water system from the municipality to the camps to forcing the state to provide bottled water. We also fought situations of aerial pesticide spraying done directly over the housing camps, causing the children and other family members to be exposed to toxins. Through these efforts, we helped build strong organization of the farm workers, while increasing the abilities of CCLP, worth far more than just returning the overpayments of the rent.

CCLP has used this model of combining legal tactics with organizing repeatedly in our campaigns, which include classes, articles and education around the root causes of the various legal problems.

Another example was embodied in a presentation that NCCLP arranged with la Coalición Latinoamericana de Cónsules en Nueva York (CLACNY) pursuant to the request from some of the Latin American Consulates that we help them address the ongoing problem of getting government agencies in New York City to carry out the mandates of the Vienna Convention. The Vienna Convention requires that any government must inform a Consulate in its jurisdiction when an agency either takes a person who is a national from that country into custody or removes the children from the national’s custody and places them in foster care. New York City was routinely not informing the Consulates when they were removing children from their parents’ custody.

First, we accompanied the Consul General from Venezuela, along with one of our volunteer attorneys, to meet with the head of the New York City agency responsible for removing children from their homes. In the meeting we addressed the overall breach of responsibility by the agency. The commissioner heading the agency claimed ignorance of the Vienna Convention! She said that now that she knew, she would start carrying out the agency’s responsibilities.

We then organized a presentation to the members of CLACNY by volunteer attorneys. After explaining the state of the law and what rights the consulates had, we spoke to the organizing work the Consulates had to do if they were going to move the U.S. courts to force the U.S. and state government agencies and the district attorneys to do their job of notification. Nine Latin American Consulates sent representatives to hear the presentation. We followed it up with an article on the presentation in NCCLP’s publication Verdict magazine, which we then hand-delivered to all the Consulates.

Publication of Verdict Magazine as an Organizing Tactic

In 1995 NCCLP launched Verdict magazine, a quarterly legal journal now in its 21st year of publication, to promote combining pro bono use of our professional skills, coupled with organizing to address fundamental contradictions in the law as related to working people. NCCLP seeks to provide an approach to problem solving that goes beyond the short-term solutions of the past. Verdict itself serves as an organizing tool to bring the legal community together to discuss and propose approaches to solutions to problems affecting both the ability of attorneys to practice law in an ethical manner in the interest of the population and to the problems affecting workers themselves. Through the magazine, CCLP involves attorneys, professors and judges as contributors of articles across the legal spectrum that analyze the root policies contributing to legal problems faced by working people. As such, Verdict provides a forum promoting involvement by legal professionals and others active in or searching for legal and organizational solutions to the growing problems facing low-income communities in the U.S.

The magazine provides a centralization point for volunteer efforts and in its distribution reaches out into the community through arms-length organizing to find people interested in joining our efforts. The magazine is used by the autonomous CCLP organizing drives in New York City, Sacramento, San Francisco and Los Angeles to attract additional attorneys to volunteer their time to assist with the pro bono legal education and advice sessions.

The magazine is a completely volunteer effort with all of the articles, the artwork, the photographs, the design and desktop publishing, the printing, binding and often the paper, donated.

Verdict has also featured other organization’s efforts to combine the law with organizing. For example, in the April 2015 issue Verdict published an article on “participatory defense,” a concept developed by an organizing effort in California led by Raj Jayadev, which seeks to involve the families and their communities in the fight to keep young people charged with crimes from going to prison. Their efforts in San Jose, California alone have saved over 1,600 years of prison time among those they have involved over the past six plus years and have changed the lives of the families, teaching them how to fight for their community where young people of color are subject to racial profiling and mass incarceration. Their method is expanding as public defenders are picking up on the method and joining in with the participatory defense approach.

CONCLUSION

The United States’ two-tiered legal system favors the wealthy, while becoming increasingly unavailable to a growing portion of the population. NCCLP has developed an organizing approach to combine tactics within the legal arena with organizing in the community to fight for solutions. The right to due process and to an impartial tribunal is a matter of international law and concern.

In 2014, the World Justice Project, in its annual Rule of Law Index, ranked the United States at 19th among 102 nations globally on access to civil and criminal justice and fundamental rights. No “rule of law” can truly exist when large segments of the population do not have effective access to exercise of those laws through the courts, the primary Constitutional means of dispensing justice. Another approach is definitely needed.

1 National Labor Relations Act, 29 U.S. C. §§ 151-169. See §152 (3).

2 Pew Research Center FactTank, October 9, 2014.

3 Economic Policy Institute Report/Raising America’s Pay, March 19, 2015. See also, Hourly compensation only rose 8.9% for the same time period: 1973-2013.

4 Ibid.

5 United States Census Bureau, supra.

6 Hunger in America: 2015 United States Hunger and Poverty Facts, World Hunger Education Service, citing United Census Bureau figures.

7 The Rise of Extreme Poverty in the United States, H. Luke Schaefer & Katherine Edin (Stanford University Pathways, Summer 2014), citing the Survey of Income and Program Participation, collected by the United States Census Bureau.

8 America’s Wealth Gap Between Middle-Income and Upper-Income Families is the Widest on Record, Pew Research Center, FactTank, December 17, 2014.

9 America Today, 3 Million Overlords and 300 Million Serfs, Business Insider, April 10, 2013.

10 Ibid.

11 Economic Inequality: It’s Far Worse Than You Think, Nicholas Fitz, (Scientific American, March 31, 2015).

12 Ibid.

13 Legal Aid Society, Monday, May 16, 2011, Testimony of Steven Banks, Legal Aid’s Attorney in Chief, before New York City Council.

14 Indiana State of the Judiciary: 60% Plus of Civil and Family Law Litigants are Pro Se: Shift Funding for Court to State, by Bill Raftery, January 14, 2014.

15 In New York, the Office of the Deputy Chief Administrative Judge for Justice Initiatives reported that 90% of litigants in Housing Court are self-represented and 75% in Family Court.

16 “Stronger Hand for Judges in the ‘Bazaar’ of Plea Deals,” by Erica Goode, New York Times, March 22, 2012.

17 New York City Bar Association Report in Support of the Judiciary’s 2014-2015 Budget Request.

18 Ibid.

19 “Barring Recourse through Mandatory Arbitration Agreements,” James C. Sturdevant, Verdict, Vol. 19, No.4, October 2013.

20 “Mass Incarceration: The Whole Pie,” Peter Wagner and Lea Sakala, Prison Policy Initiative Report. March 12, 2014. The Prison Policy Initiative also reports that almost 12 million people cycled through local jails per year. Most are too poor to make bail. Almost 300,000 are serving time for minor offenses. In the United States 3 million immigrants have been held in detention facilities in the past decade. Frontline, “Lost in Detention,” October 18, 2011.

21 NAACP Criminal Justice Fact Sheet.

22 The Thirteenth Amendment reads, “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

23 “Affirmative Action Under International Law – An Ignored Argument” Gloria Brown Marshall, Esq., and a sidebar “Washing Away the Stain of Slavery,” Verdict, Vol. 10, No. 1, January 2004.

24 “Prison Labor: Three Strikes and You’re Hired,” Caitlin Seandel, Ella’s Voice, Ella Baker Center on Human Rights, June 27, 2013.

25 Ibid.

26 NAACP Criminal Fact Sheet, supra.

27 “Justice Kennedy: U.S. Prison System Broken,” The New York Times, March 23, 2015.