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World Day of Social Justice Requires Reflection from California

February 20th is World Day of Social Justice — observed by the United Nations and people around the world. Since 2009, the UN has encouraged World Day of Social Justice as an opportunity to focus on social justice, draw attention to injustice, and inspire cooperative movements for change.

On this worldwide day of reflection and action, I wonder — how can California, a state with so much wealth, also have so many people experiencing poverty?

For many, California represents endless good weather, boundless natural beauty, and limitless opportunity unmatched by other places on Earth. But peek behind the golden curtain, and you’ll find poverty, homelessness, and other injustices that belie the golden image of the golden state. In a state with so much, it is unconscionable that there are so many Californians unable to share in that wealth.

For me, How?, Why?, and What The @!#$? come to mind.

I am proud that I joined Western Center last summer to be a part of the team that asks not only the questions above, but also works every day to answer them. Since Western Center’s founding in 1967, we’ve worked to ensure access for all Californians to justice, housing, healthcare, and financial and community stability. Our multi-pronged approach to systems change allows us to positively impact the lives of individuals while also creating change that ripples across the state.

Western Center’s litigation team trains and supports legal aid communities to help enforce laws where bad actors would ignore or take advantage. Our advocacy team advances legislation in Sacramento to build a better future for all Californians and stymie efforts that further entrench injustice and exploitation. We don’t do this work alone — we know that robust community partnership and coalitions of support are required to make the change we seek.

I invite you to join us.

You might think the most obvious thing I’m going to ask you for is a donation. And while yes, your financial support of our work is greatly appreciated and provides funding to power our mission, there are other ways I’d love for you to consider joining us as well.

Use your voice. It isn’t just lawyers or policy advocates’ voices that matter – yours does too! I encourage you to contact your elected officials in Sacramento, your county, and your local town to let them know what issues are important to you and what change you’d like to see. Make sure you’re registered to vote and vote every chance you get. Your voice matters.

If you’re not sure who your elected representatives are or how to contact them, you can find that information here. If you are not yet registered to vote, you can do that here.

World Day of Social Justice is a great opportunity to raise a hand and join the community of people and organizations fighting for change. As a donor, as a volunteer, as a social media follower – no matter how you engage, there is a space for you.

Today is a great day to reflect on how social justice resonates with you and to seek out organizations and actions that most speak to you. In addition to Western Center, I have a few suggestions for outstanding organizations you might also engage with:

If you’re reading this blog post, it likely means you are a supporter of Western Center and the work that we do. Thank you, today and every day, for fighting alongside us for social justice.

U.S. infrastructure bill marks the beginning of a journey, not the end of a debate

Western Center’s Executive Director Crystal D. Crawford, JD, and Manal J. Aboelata, MPH, Deputy Executive Director at Prevention Institute and author of a new book, Healing Neighborhoods, reflect on the Infrastructure Investment and Jobs Act and what this once-in-a-generation public investment could mean for ensuring all Americans the human right to live in a healthy neighborhood.

As we reflect on the historic $1.2 trillion infrastructure spending bill President Biden signed into law at the end of last year, we’re acutely aware of the promise and peril this massive public investment holds for people in the United States. As residents and professionals who live and work in LA County, we witness firsthand the challenges and opportunities that arise when large sums of taxpayer dollars become available to improve neighborhood conditions.

In 2016, LA County voters got behind a series of ballot measures to fund high quality transportation, safe and well-maintained parks and open space, quality housing and supportive services, and storm water management systems—to the tune of $1.5 billion per year.

Our experience in LA has many lessons to offer. Just like now, the promise is a tremendous opportunity to direct public funds to where they are most needed and make a positive difference in people’s daily lives. The peril, like now, is a failure to reckon with the legacy of segregation and its far-reaching intergenerational effects on community health, safety, and well-being.

It takes years, if not decades, to see the impacts of infrastructure spending. Past measures show us that investing in the status quo can reinforce and exacerbate “winners” and “losers.” Public investments must proactively prioritize funding in the highest need communities and inclusive engagement processes.

We know that our most disenfranchised communities could immediately put government resources toward essential health-promoting infrastructure. And yet, there are few guarantees that public dollars will flow toward the communities that need them most without strategic advocacy, grassroots organizing, and sometimes litigation.

As hard as it was to secure 228 congressional votes from lawmakers on both sides of the aisle, it’s no wonder President Biden, Vice President Harris, and House Speaker Pelosi hail the infrastructure bill as a major victory. But our experiences in LA demonstrate that the passage of the law is a beginning, not an end. The long road to equitable implementation lies ahead. Delivering on the full promise of this much-needed law requires a fair, just, and equitable distribution of these public resources.

From 2018-2020, as a Stanton Fellow of the Durfee Foundation, Manal embarked on a journey to better understand what it would take to proactively invest public resources in LA’s marginalized neighborhoods to improve conditions for health, safety, and well-being in Black and Brown communities. She documented her observations in Healing Neighborhoods, a groundbreaking new book that provides a framework and insights that resonate with the moment in which we find ourselves.

The “6 Levers for Tackling Inequities in Public Finance Measures” outlined in Healing Neighborhoods increase the likelihood that dollars will get to where they are needed most:

  1. Ensure clear funding guidelines, set asides, and earmarks to prioritize historically disinvested low-income communities and communities of color;
  2. Design and implement high quality technical assistance programs to proactively support and engage under-resourced Black and brown communities;
  3. Create funding programs that remove barriers to community-based organizations and low-wealth jurisdictions so that they can compete for public dollars;
  4. Include racially, ethnically and economically diverse community residents in the process using popular, multicultural and multi-lingual engagement strategies;
  5. Bake accountability and transparency measures into the system to ensure that taxpayers and lawmakers can see how money is spent, and make course corrections if gaps are not closing;
  6. Make data on all aspects of implementation available in timely and easy to understand formats.

As with the American Recovery and Reinvestment Act of 2008, there will be tremendous pressure to get shovels in the ground for shovel-ready projects. The risk of over focusing dollars on shovel-ready projects to show near-term results, however, is that ideas and places that already have less infrastructure capacity will continue to be left behind and public dollars will default to existing programs and traditional resource flows.

COVID-19 and the nation’s racial reckoning have made it clear that to thrive, our nation needs healthier, safer, and more equitable conditions and outcomes. To get there, we’ll have to spend in new ways, proactively driving dollars to the neighborhoods that need them most.

What we’ve learned in LA is that it is incumbent on all of us—residents, advocates, public health practitioners, racial justice leaders and social justice lawyers–to stay focused and vigilant in the days, months, and years ahead. Public money and public trust hang in the balance. We hope that when future generations look back on this historic bill signing, they recognize it as a turning point toward health equity, racial justice, financial security, and community stability in this country.

For more information about Healing Neighborhoods, or to print your own copy, go to: Healing Neighborhoods.

 

 

 

 

The City Center is Organizing

At City Center Motel in Long Beach, the untimely death of a long-term tenant spurs others to action

Last year, one day after Veterans Day, at the City Center Motel in room 205, Timothy Star died. He was a Vietnam Veteran who was proud of his Navajo roots. He was a medicine man who provided healing for close friends in need.

Tragically, police discovered Timothy’s body days after he passed. His neighbor, Joseph, says Timothy died from shock. Timothy was served an eviction notice in September, and the prospect of becoming unhoused loomed over him. Ultimately, it was too much.

Photo of City Center Motel captured by Abraham Zavala

Timothy was one of nine remaining long-term tenants at City Center Motel in Long Beach facing displacement. Joseph is a tenant I met while organizing in the housing justice movement. Community work often creates a lasting connection, where people continue to reach out looking for support well after you may have left the community based organization (CBO). Sometimes folks reach out when they are in a tough situation. When Joseph called, I called right back. We made plans to meet up and talk to tenants at City Center Motel.

The motel once housed dozens of tenants. Now, the remaining handful of tenants are organizing. Joseph and a few other tenants are connecting with local housing justice organizations for support. They intend to band together and ask the owner of the property for relocation fees. They fear they will end up on the streets if they don’t make such demands. 

The motel sits close to Ocean Boulevard surrounded by numerous high-end, high-rise apartments. There is an increase in construction of new housing in the area – most of it out of reach for tenants who have lived there for decades. Joseph says it’s mostly elderly tenants or folks with disabilities at the motel. They cannot afford the current market price of rent in the neighborhood. 

Tenants say the last time they had any contact with management was the day they were issued eviction notices. Multiple residents’ names were misspelled on their notices, and some listed completely different names. Other tenants never received notice at all. 

Every remaining tenant is legally a renter since everyone paid rent for at least a year at the motel. But in the absence of management, communication, and resources, they are forced to live with extreme uncertainty, barely habitable housing, and no clear alternatives. 

The most difficult part was when motel management stopped the amenities. Tenants lost the kitchen, laundry room, control room and the office — it was all locked up soon after the management and staff left. 

In response, tenants assigned each other responsibilities that staff once carried out. Joseph and Freddie, fellow tenants, do security since people frequently break into rooms. There was a break in recently and the tenants closed up that room with wooden planks. On Thanksgiving, three men tried to break in, but a tenant talked them down and they left. Break-ins are the biggest safety concern they share. 

To make safety matters worse, tenants are often unable to open their rooms since the key door devices no longer work. They have to break into their own room to get home. An older woman, Margaret, has to leave the door slightly open when she leaves since she is disabled and can’t go through the window.

Additionally, there is a lot of water damage in the rooms – ceilings discolored at the edges and black mold. One room boasts a large hole in the ceiling. 

All together, tenants are worried about what happens next. However, they will not remain idle.

On November 16, 2021, Joseph and other tenants took their message to council chambers while the city’s Housing Element plan was adopted. They called on the city council to make housing a priority and closed their public comment by asserting that housing is a human right! 

Despite ongoing activism, they are now looking to find ways to fund relocation. They continue to face pressure to leave. The property manager tried to put a fence around the site over the holidays. When tenants informed the landlord that this was a form of illegal eviction, they were given access to the fence’s lock. 

Now, they organize, hope, and wait for justice to come – perhaps in the form of a fair relocation settlement – so they can start again.

 

More Patient Protections for Hospital Billing in 2022

Many Californians, whether insured, underinsured, or uninsured, are carrying the burdens of medical debt in their lives. This year, Western Center co-sponsored AB 1020 (Friedman) to address this problem. AB 1020 strengthens the existing Hospital Fair Pricing Act, which requires California hospitals to provide free or discounted care to uninsured and underinsured patients who are low income; and the Rosenthal Fair Debt Collection Practices Act and Fair Debt Buying Practices Act, which require debt collectors and debt buyers to follow fair debt collection procedures.

The amendments aim to inform more people of the availability of financial assistance when receiving hospital services and hold hospitals, debt collectors, and debt buyers accountable to this assistance. Since the Hospital Fair Pricing Act was passed 15 years ago, legal services advocates have navigated an opaque application process with their clients who should have qualified for charity care but never received notice or an application. Patients were left in murky negotiating situations when they had to deal with accounts that had been assigned or sold to debt collectors and debt buyers. Patients needed a clearer application process. AB 1020 does the following:

  • Requires hospitals to provide patients with notices about their charity care and discounted payment policies and actual applications at specific points in the billing and collections cycle;
  • Requires hospital contracts with debt buyers to include patient protection provisions;
  • Imposes additional requirements for collection of medical debt;
  • Authorizes the Department of Health Care Access and Information to penalize hospitals for non-compliance (coming in 2024); and
  • To keep up with the higher cost of living, increases the income eligibility threshold to 400% of the federal poverty level.

Our Health Care Practice Tip this month details these changes and more. One common unlawful provision found in many hospitals’ fair pricing policies is a specific time period to apply, often set at 150 days. These deadlines violate the Hospital Fair Pricing Act, which allows patients to apply for charity care or discounted payments at any time, without time limit.  Meanwhile, hospitals may still commence collection activity after the statutory time period has passed. The Health Care Practice Tip explains this issue.

Even in the pandemic, the accumulation and collection of medical debt have not stopped. Our state’s charity care and collections laws still require rigorous enforcement by advocates.

Here is the full report: Health Care Practice Tip – December 2021

Want Equity? Start when kids learn how to read.

I am a parent in the process of looking for the best education path for my son. As an attorney at Western Center who often works on issues pertaining to child welfare, I am also interested in advocacy around access to and quality of education – especially for kids of color like mine. A lot of what happens in education is a direct reflection of our nation’s “commitment” to racial equity issues (which is to say, we’re not that committed), and to science. For those committed to racial equity and ending the school to prison pipeline, there is no other option but to be interested in and committed to this issue.

To make a long story short — there is well-researched scientific evidence about how people learn to read, usually distilled into what is called the “Science of Reading,” which has been around for 20 years. There are plenty of news reports, research papers, podcasts, social media groups, and conferences devoted to discussing the “Science of Reading” and best practices in reading instruction. Bafflingly, most school districts do not use curriculum that aligns with the science of reading. This partially contributes to 83% of Black kids and 60% of white kids not being proficient readers by the 4th grade. Unfortunately, the most recently released National Assessment of Education Progress “NAEP” scores show startling declines in math and reading proficiency among our nation’s youth, and widening gaps for Black and Latinx youth.

Change is on the horizon, however, in part because of books like “The Knowledge Gap” and other forms of advocacy, but it’s surprising that it has taken so long to catch on. As a nation, we have a lot of problems when it comes to listening to science. We blame Black and brown children for failing to meet reading proficiency standards despite evidence that we are not teaching them based on scientifically sound methods. We are wasting public funds, resources, and most importantly, human potential.

San Francisco Unified School District adopted a curriculum that is not at all aligned with the science of reading, which was actually banned in Berkeley as a result of a lawsuit because it does such a poor job of teaching kids to read. Meanwhile, in places like Milwaukee, parents have successfully advocated for more science-based approaches to learning. Colorado, Arkansas, Mississippi, and other states already have laws on the books requiring science of reading based approaches, which have achieved positive results.

From my view as an advocate and parent, the science provides a clear call to action for helping our kids reach their potential: (1) reading instruction should be part of general education through 5th grade and likely through middle school; (2) schools should be required to use curriculum aligned with the science of reading; (3) teachers should be trained in college on the science of reading, which would require new legislation in several states including California; (4) early childhood education students should be trained on early science of reading methods and how to spot early signs of reading difficulties.

Reading proficiency is fundamental in this society – especially when we talk about lifting families out of poverty. It’s a relatively easy intervention, we just need a commitment to following proven methods for teaching kids how to read. Sticking our heads in the sand when the evidence is clear is a disservice to children, families, and their communities – our systems of education must adjust to meet the needs of our kids.

Housing is the foundation for healthy people and communities. California needs a fundamentally new approach to keep people safely housed.

COVID-19 has been with us for nearly two years, and in California we’ve gone through a dizzying rollercoaster of eviction protections, ranging from robust – the Judicial Council’s emergency order stopping all but emergency evictions, to nonsensical – the March 2020 executive order billed as an eviction moratorium that had little actual effect.

Tenants and advocates have been tirelessly demanding simpler, more robust eviction protections that will last until the state distributes billions in rental assistance funds to eligible tenants and landlords. These demands were ignored, and evictions are now rolling forward while tenants continue to wait for the funds to be distributed. At the same time, the number of Californians experiencing homelessness continues to rise. This continually evolving crisis also highlights the ways evictions are another form of racialized violence that harm communities of color much more than others; in particular, Black people are disproportionately likely to be evicted and experience homelessness.

In California, about 17 million people rent their homes. Any of those people could be kicked out of their home in a matter of weeks under our current eviction laws — even if they have lived in their home for 30 years, if they are a person with a disability, or if they are elderly and in poor health and it’s the middle of winter. Renters are constantly vulnerable because our system prioritizes the rights of property owners over basic human needs.

During the pandemic, public health researchers demonstrated through exhaustive research what tenants and advocates already know – people who are evicted are also more likely to die. Children experiencing eviction do poorly in school, impacting the trajectory of their lives. Pregnant women suffer greater mortality and have worse health outcomes. Evictions lead to profound mental health problems that persist even after the tenant finds new housing. An eviction is not a blip in a life; it is a catastrophic event that can take people from barely making it to not making it at all.

The legislature passed AB 832 this summer, the third in a series of complicated eviction protection laws intended to stop evictions for tenants eligible for rental assistance. While the bill has protected some tenants, many people remain vulnerable to losing their homes. State rental assistance is rolling out far too slowly and tens of thousands of eligible tenants are still waiting for help to arrive.

Tenant attorneys and advocates are trying to defend tenants from eviction for rental debt that should be covered by the billions of dollars California received from the federal government, but the money is moving too slowly, and courts are processing eviction cases without checking to see if the landlord is being paid through the rental assistance fund. The law is so complicated that tenants have little chance of defending themselves without an attorney, and even with an attorney, tenants eligible for rental assistance can still be evicted even while their landlord receives the money they are owed.

As a result, people who should be protected by these laws are becoming homeless. Those who lose their homes will, more likely than not, also be those who took the brunt of COVID’s devastation – people of color, people with disabilities, elderly people, and families with young children. These are Californians who just want to keep a roof over their head — those who lost jobs during COVID or had to stay home to care for children who suddenly had no physical school; those who got sick themselves or had to care for sick family members.

The complex, layered web of protections that evolved throughout the pandemic all just highlight one fundamental truth: the entire system we use to provide housing, and to take it away, is utterly unjust and broken. COVID must be a wake-up call for us all that this system doesn’t make sense.

Thanks to AB 1482, the Tenant Protection Act passed in 2019, most tenants have existing protection from so called “no cause” evictions — when the landlord simply kicks you out without stating a reason. Despite these protections, a tenant can still be removed from their home if they are late for even part of a month’s rent. With only three days’ notice, landlords can proceed with an eviction case, even for a long-term tenant who follows all the rules.

Without enough attorneys to assist them, tenants facing eviction will often just move out because they are afraid to go through the court process alone. Our entire legal system is based on the premise that a landlord’s right to evict someone from the property they own is fundamental and critical. Even when the landlord is a giant multinational corporation that owns tens of thousands of units, their right to evict is treated as primary; meanwhile for the family who lives in that home, the “property” is the center of their life, community, access to work, school, and medical care. All of that can be taken away from California tenants with only three days’ notice.

It benefits all of us as a society to remake this system to protect people’s basic right to a safe home. Many people are working to do just that, through the movement for social housing and Tenant Opportunity to Purchase legislation (like in Berkeley, Oakland and Los Angeles). In California, we must work to make fundamental, long-term reforms based on the basic premise that affordable, stable housing is a necessary foundation for healthy communities. Evictions should be a rare occurrence that only happen as a last resort.

 

Challenging Unjust Juvenile Fee Collection for Families in Riverside

Last month, Western Center filed a motion for class certification in our case, Freeman v. Riverside County, which challenges how Riverside County charged fees to parents and guardians whose children were involved in the juvenile legal system. The case was filed together with our co-counsel, the National Center for Youth Law.

Families were charged daily “costs of support” – $30 or so per day for each day their child was in detention. State law required the county to assess families’ ability to afford the costs, which were often thousands of dollars, and provide procedural due process before collecting. Riverside did nothing – just calculated the fees and sent the totals to collection. Our case seeks to shine a light on this abuse of government authority, and asks for a refund of illegally collected fees.

Fortunately, the authority to charge these types of juvenile fees has been eliminated in California, as well as counties’ ability to collect older fees. The story behind this case is important, not just for accountability in Riverside, but also because there are still many fees charged to overpoliced communities in California.

Cases like this one demonstrate why advocates are fighting for abolition of juvenile and adult criminal fees – not a reduction or ability to pay process. There are important racial equity principles behind that goal, because of who the juvenile and adult legal systems target. There are also common sense administrative policy reasons for fee abolition, mainly that ability to pay processes are inequitable and don’t work. Our case in Riverside shows that even when state law requires an ability to pay process, it is not followed, or it’s followed so ineptly or inconsistently that it becomes meaningless. Ability to pay processes also replicate racial bias in the courts and legal system.

As this case proceeds, I must share our appreciation and admiration for our clients who have worked with us on this case for over two years, and for their bravery in telling their stories. We are hopeful for a good outcome, and that the class data we may be able to obtain illustrates why shifting the cost of government onto individuals through user fees causes inequity, and in a nutshell, constitutes wealth stripping from low income communities and communities of color.

Accessing Health Care During a Disaster

California is home to some of the most beautiful landscapes in the world, but it’s also home to disasters that will likely increase as our climate changes. Disasters often cause immediate chaos and create significant burdens in the aftermath, including obtaining health care.

Survivors of disasters have a right to get health care when, where, and how they need it. Unfortunately, they might have to fight for it. Western Center’s health care advocates created a practice tip for accessing health care after a disaster.

Due to ongoing wildfires and future disasters, survivors may need extra assistance to access health care. Fortunately, several protections help survivors access the services, supplies, and care that they need.

Read the full tip for detailed information about special rights and remedies available to survivors seeking prescription drugs, medical supplies and equipment, physician and specialist care, eligibility and coverage, health plan enrollment changes, and more. In the meantime, here are a few important points to know when trying to access health care in the wake of disaster:

Whether survivors are insured or uninsured, rights and resources exist to help replace prescription drugs, as well as medical supplies and equipment lost or destroyed during disasters. 

  • Uninsured survivors can access prescription drugs and supplies via the Emergency Prescription Assistance Program, which provides free refills with a prescription at participating pharmacies. To locate a participating pharmacy, call 855-793-7470 or click here.
  • Insured survivors can contact their prescribing providers, pharmacies, and/or managed care plans to request refills and replacements.
  • Medi-Cal Dental: Removable dental appliances may be replaced under special expedited procedures (i.e. retainers, space maintainers, partial and full dentures, and joint appliances). Claims for these appliances, exams, and radiographs should not require prior authorization, and limitations should not apply.
  • FEMA Other Needs Assistance provides grants for “necessary expenses and serious needs” caused by the disaster including medical and dental expenses not covered by primary health insurance, including if insurance denies or excludes coverage, or the survivor is uninsured. Apply for FEMA benefits at Disaster Recovery Centers, (800) 621-3362, or online. Contact the California Disaster Legal Assistance Collaborative for more information.

Survivors may need access to care and medical appointments urgently during and after a disaster. Several protections require health plans and providers to make care available.

  • Emergency care: Federal law prohibits hospitals from turning away pregnant people in labor and patients facing emergency medical conditions—no matter their insurance status.
  • Dialysis: Patients should first contact their regular dialysis center for help locating a replacement center.
  • If contracted providers are unavailable after a disaster, Medi-Cal managed care plans must still provide adequate provider networks, including by authorizing out-of-network care if no providers are available in network.
  • Medicare Advantage Plans must allow members to access out-of-network care after “a Presidential emergency declaration, a Presidential (major) disaster declaration, a declaration of emergency or disaster by a Governor, or an announcement of a public health emergency by the Secretary of Health and Human Services.”

During and after a disaster, survivors may need help applying for Medi-Cal and Covered California, or just keeping their existing coverage.

  • Many disaster survivors may be newly eligible for Medi-Cal due to job loss and/or reduction in earnings. They may obtain expedited Medi-Cal.
  • Starting July 1, 2021, many people can get immediate full coverage when they apply for Medi-Cal at CoveredCA.com or by phone at (800) 300-1506. After a disaster, Medi-Cal application requirements are less restrictive. You can apply for Medi-Cal at any time.
  • County welfare offices must continue to provide Medi-Cal eligibility services during and after disasters “without delay.” This includes in-person assistance during regular business hours, plus telephonic and internet access for Medi-Cal applications and renewals.
  • A declared state of emergency in California gives affected individuals a special enrollment period to enroll in Covered California for 60 days after the date of the declaration of state of emergency.

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Note: This resource is for current and future disasters in 2021 and beyond. For the latest rules on the ongoing COVID-19 pandemic, please visit the Health Consumer Alliance’s website, which is kept current with evolving pandemic rules. If you or someone you know needs assistance accessing any of these benefits, please call the Health Consumer Alliance at 888-804-3536 for free, confidential assistance.

Victory for COVID Tenant Protections in Los Angeles

In an opinion issued last week, the Ninth Circuit Court of Appeals upheld the City of Los Angeles’ COVID-related tenant protections and affirmed the City’s ability to protect tenants from becoming unhoused during a pandemic that has claimed over 600,000 lives in the United States.

The Apartment Association of Greater Los Angeles filed a lawsuit in federal court to challenge, on constitutional grounds, the city’s ability to enact COVID-related tenant protections during the local emergency period: one barring evictions for nonpayment of rent or certain lease violations for COVID-related reasons and one barring rent increases for rent control units.

Western Center, along with Public Counsel, The Public Interest Law Project, and Susman Godfrey LLP, represent two tenants’ rights organizations, ACCE Action and Strategic Action for a Just Economy (SAJE), who successfully intervened in the lawsuit to help defend the ordinances. Since the lawsuit was filed, California enacted rental protections, recently extended by AB 832, which overlap significantly with the eviction protection ordinance. While state law goes further to protect tenants in some ways, the City’s ordinance goes further in others.

After United States District Court Judge Dean Pregerson denied the Apartment Association’s motion to stop the ordinances, the Association appealed to the Ninth Circuit, arguing that the ordinances interfered with contracts between individual landlords and tenants, and that the City’s actions were unreasonable.

Ultimately, the Ninth Circuit panel stated, “the district court did not err in determining that the moratorium’s provisions were reasonable and appropriate given the circumstances of the COVID-19 pandemic,” as “[t]he City fairly ties the moratorium to its stated goal of preventing displacement from homes, which the City reasonably explains can exacerbate the public health-related problems stemming from the COVID-19 pandemic.”

The ordinances do not “cancel” rental obligations – tenants are still on the hook for rent, but they can’t be evicted for nonpayment while the ordinance is in effect. The Apartment Association argued that delayed payment bolstered its Contracts Clause claim. The Court rejected that argument, stating, “[T]here is no apparent ironclad constitutional rule that eviction moratoria pass Contracts Clause scrutiny only if rent is paid during the period of the moratoria[.]”

Additionally, noting the establishment of federal, state, and local rental relief programs, the Court stated that the existence of such programs “further undermine AAGLA’s Contracts Clause challenge.”

This lawsuit is one of many that landlords have filed to challenge emergency eviction protections across the country. In fact, a landlords’ challenge to the Centers for Disease Control (CDC)’s Temporary Protection from Eviction was reviewed by the United States Supreme Court, which issued a ruling on August 26th stating that the CDC exceeded its authority, and therefore suspended the Temporary Protection.

While we disagree with the Supreme Court’s ruling for the reasons stated in Justice Breyer’s dissent, it is important to note that the Supreme Court’s majority did not invalidate local and state eviction protections. This decision does not impact California’s state-wide protections or locally enacted tenant protections, including in the City of Los Angeles, which remain in effect.

Landlord challenges to eviction protections continue, even as we face a deadly surge in COVID-19 cases due to the Delta variant. We hope more landlords and associated entities will shift their energy toward the government agencies tasked with distributing rental relief, and advocate to ensure the funds are being made available to stabilize both tenants and landlords, rather than forcing struggling renters out and onto the streets.

 

DICK’S WRITING TIPS: Brief Writing with Western Center’s Director of Litigation – Part 2

Welcome to part two of Richard Rothschild’s tips for effective brief writing, a follow-up to last week’s part one. Dick has practiced public interest law for over four decades, and he’s picked up quite a bit of knowledge along the way. These are tips Dick shared with attorneys in our network, now available for public consumption.

 

1. Don’t start off on the wrong footnote: the best and worst uses of footnotes

Footnotes are the bread and butter of law reviews and certain treatises. They are used to provide authority for virtually every sentence in the text; to expand upon points in the text; or just to provide side comments. While all of these may be worthy functions in academia, litigation briefs are different. Footnotes should play a much more limited role; use them judiciously.

Part 1: The Worst Uses of Footnotes —

Putting all the cites in the footnotes: Some brief-writing seminars promote the idea that all citation to authority should be placed in footnotes. This is controversial and should be avoided for two major reasons.

First, it’s not good advocacy. It makes the writer the show, when the show should be the law. The goal of your brief is not to have the judge conclude, “wow, that was a well-written brief!” Rather, you want the judge to think, “yes, counsel did a good job, but of course the facts and the law were totally on their side.” For that to happen, the authority should be in the text. In addition, if the reader pauses to read the footnote, that interrupts the flow of the text.

Second and perhaps more important, courts simply don’t like all the authorities in the footnotes rather than the text. One or two courts have rules prohibiting it, and both appellate justices and senior research attorneys I have heard unanimously condemn it.

Making arguments in footnotes: We have all done this, myself included. It’s particularly tempting when you don’t know where an argument fits into the organization of your brief. But that’s all the more reason to re-evaluate your organization, or to re-evaluate your argument. If the point is important, it should be in the text. If not, it shouldn’t be in the brief at all. Otherwise, you are sending mixed signals. As one appellate court cited in the Rutter Group’s practice book stated, “We are not fond of footnote arguments, as they make us unsure whether the appellant is attempting to raise a ground on appeal or is merely making a passing comment.”

“Educating” judges with information they don’t need: When you know a lot about a subject, it’s tempting to share that information with an audience, especially a captive one, and you might think that footnotes are a good way to do that. Think again. The goal of the brief is to persuade the court, not provide the judge with a free webinar. Ask yourself if the information is necessary for the judge to understand and decide the legal issue. If it is, the information belongs in the text. If the answer is no, delete.

Digressions: Avoid any footnotes that begin with “By the way,” or could easily begin with “By the way.”  Stay focused.

Part 2: The Best Uses of Footnotes –

When necessary to preserve the flow of the text: The brief writing seminars are correct that throwing lots of lengthy cites to authority in the text, especially in the middle of a paragraph, can interrupt the flow of the argument. Sometimes a footnote can help with that problem, as, for example, when you paraphrase a statute and provide the text in a footnote. Footnotes can also help with unusually lengthy citations, such as some internet sites.

When an early footnote saves later space: In a related vein, a footnote placed early in a brief can save space in the later text and make the text easier to read. If, for example, the brief concerns CalWORKs or Medi-Cal, the first time you cite to a statute you can drop a footnote saying, “Unless otherwise stated, all statutory citations will be to the Welfare & Institutions Code.” Then further citations to that code can be signified just by “Section” or “§” followed by the relevant number of the code provision.

Collateral Points: The CEB practice book acknowledges that footnotes can be used to “mention a collateral point.” For example, if you are raising a point on appeal that wasn’t made in the trial court, you might acknowledge that in a footnote and explain why it’s permissible to do so under the circumstances. But arguably, even then you might want to make the point in the text or save it for potential rebuttal in a closing brief. In any case, I agree with everybody who has written on the subject that the use of argumentative footnotes should be very limited. So while it’s unnecessary and maybe not even desirable to eliminate all footnotes from your briefs, use them sparingly and wisely.

2. Addition by subtraction: Improve your advocacy by avoiding these ten words and phrases

What you omit can often improve your advocacy as much or more than what you add. Helpful omissions can range from entire arguments to just a word or phrase.

Here are ten such words and phrases:

1. “including but not limited to…”
Think about it.  Why the “but”?  Is there some universe in which “including” means “limited to”?

2. My oral argument favorite: “With all due respect, judge . . .” 
It doesn’t matter what comes next; when I hear those words in a courtroom, I immediately begin looking for a table to duck under. The judge knows what the attorney really means is, “your power to hold me in contempt prevents me from saying out loud what I really think of you.” And the judge suspects that whatever the attorney next says will be anything but respectful. It’s part of the job description to disagree with a judge at times. You should do so politely and yes, with a respectful tone, but without the “with all due respect” nonsense.

3. “As [opposing party/counsel] well knows . . .”
Three problems with that: (1) you don’t usually know what your opponent knows; (2) it is almost always irrelevant; and (3) it’s likely to irritate the judge as uncivil. Just state your factual or legal proposition without speculating on what your opponent knows. This advice applies equally to communications with opposing counsel (i.e., “as you well know”), especially in settlement negotiations. You want to convey the strength of your position, but without potentially scuttling the negotiations by making matters personal.

4. Using “said” as an adjective, as in, “defendants misconstrue said statute.” 
To be sure, “said” is a perfectly good verb. Indeed, the late Robert B. Parker, in his Spenser novels, never used any other verb to describe dialogue. But as an adjective, “said,” along with its cousin “aforesaid,” is pretentious legalese. Stick with “defendants misconstrue the statute” or “that statute.”

5. [when representing the plaintiff] “Plaintiff contends…”
That suggests: “this is what my client believes; personally, I’m not too sure about it.” Don’t distance yourself from your client; just make the argument.

6. [when in California state court] – “California Civil Code section 1942.5 provides …”
Regardless of what is suggested by the Bluebook, which is written for a national, academic audience, you don’t need to tell a California state judge we’re talking about the California Civil Code, not Mississippi’s. (Unless, of course, you are talking about Mississippi). Same goes for “California Legislature.” Just plain “the Legislature” will do.

7. “Clearly” is the most over-used word in legal writing. 
At best, it means that the author thinks the argument that follows is right, which is not very persuasive. And at worst, especially if used repeatedly, “clearly” will be construed as quite the opposite: i.e., the author doesn’t have the facts or the law, but thinks that shouting at the judge will carry the day. It won’t.

8. “Plaintiffs, through their attorney of record, hereby submit their opposition to the motion…” 
Leave aside for a moment whether the first thing you want the judge to see is what is already apparent in the title of the brief. If you are signing the brief as “Attorney forPlaintiffs,” you don’t need the italicized information. Same with “the parties, through their respective attorneys of record, stipulate . . .” Admittedly, in a stipulation this is fairly harmless. But still, if you omitted that phrase, do you think the reader would conclude that the parties are stipulating through their respective baristas?

9. “[Opponent’s] self-serving declaration…”
Describing a declaration or statement as “self-serving” is unnecessary, unless you think that ordinarily people deliberately make statements that are self-destructive.

10. [when opposing a discovery request]: “this is nothing more than a fishing expedition.”
Of course it’s a fishing expedition; if they already had the information, they wouldn’t be looking, i.e., fishing for it. And if you need to use an insulting metaphor, try something that wasn’t rejected by the Supreme Court 60 years ago. Greyhound Corp. v. Superior Ct., 56 Cal. 2d 355, 384 (1961) (“there is nothing improper about a fishing expedition, per se.”).

While I stand by my position on all ten of these examples, I don’t claim these are necessarily the most important offenders. They are just ten personal favorites, and if you want to call them “pet peeves” I won’t be offended.