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DICK’S WRITING TIPS: Brief Writing with Western Center’s Director of Litigation – Part 1

Richard Rothschild (aka Dick) has practiced public interest law for over four decades, and he’s picked up quite a bit of knowledge along the way. Here are some tips Dick shared with attorneys in our network, now available for public consumption. This week is part one, check back next week for part two!

 

1. Write a Compelling Brief Introduction

What are the goals of an introduction and why should we care? Starting with the second question, think about the many news articles, blogs, posts, etc. that appear on your screen every day. If you are like most people, you read the ones that capture your attention and promise to tell you something you don’t know or that will at least entertain you. If the first few sentences don’t accomplish that, you move on.

Judges presumably are no different. While they are supposed to read everything we submit, the opening paragraph can dictate their state of mind as they go through the rest of the brief. First impressions matter.

A good introduction should accomplish two main goals: 
(1) make the court want to rule in your favor, and

(2) make the judge think that the law and facts require that result.

So how do you begin to convince a judge to rule in your favor and conclude that there is little choice but to do so?

Here are three tips for drafting better introductions:

  • Don’t start the introduction until you have written the rest of the brief. At that point, you will have a better idea of what facts and law are most important, and the first thing you want the judge to read.
  • Try beginning with a few sentences that (1) describe the plight of your client as relevant to the main legal issue; (2) something bad that the opposing party has done; or (3) both. Do so by stating facts, propositions of law, or both that (a) advance your argument and (b) cannot reasonably be disputed.
  • Then carefully edit to keep the paragraph as short as possible. The more unnecessary words you omit, the more powerful your message can be.

Here is an example: 
Angie Christensen’s family was denied public assistance because the Department of
Social Services counted the family as having money it never will receive: her husband’s
wages and unemployment garnished to pay child support owed to another family. The
result for the Christensens and similar families throughout California thwarts the
legislative purpose behind both CalWORKs and child support: to secure adequate
financial support to all California children.

That opening paragraph, while far from perfect, describes in two sentences the plight of a sympathetic client and something bad the opposing party did, using indisputable facts and law. While more would need to be written in both the introduction and body of the brief to win the appeal, at least the reader is left with the impression that “what was done to the Christensens seems like an injustice and legal error.”

If you can give your judge that impression, you are well on your way to winning for your client.

 

2. Avoid Overuse of Acronyms and Parentheticals

When I first started writing briefs and began using lots of acronyms and “hereinafter” parentheticals to explain every possible later reference to an entity, I felt like I was becoming a real lawyer. Years later, when I had drastically reduced the use of those devices, I realized I was becoming a better lawyer.

Overuse of acronyms and parentheticals is the enemy of persuasive writing. A good brief makes the reader want to keep on reading. But when, for example, in a brief on a health law issue I see ESPDT, TAR, HCBS, CFCO, and SPA in the same paragraph, I suddenly remember that long delayed need to reorganize my sock drawer. And if I see an unfamiliar acronym on page 14 of a brief, I have to stop and either flip pages back or do a word search to find the acronym’s origin on page 2, thereby interrupting whatever flow the brief may have had.

Make your reader feel smart vs. alphabet soup
One of the reasons some attorneys use acronyms—either consciously or unconsciously—is to demonstrate their superior knowledge of a subject; the author is a member of a select club of experts from which others are excluded. But that is precisely a reason to avoid overuse. Good writing makes the reader feel smart, while acronyms do the opposite, engendering readers’ resentment.

RIP hereinafter parenthetical
First cousin to the acronym is what I call the “hereinafter” parenthetical. Many attorneys believe that if you plan to use a shortened name of an entity in a brief, the first time you identify that entity you must always write (hereinafter “[shortened version]”). But leaving aside for the moment that you don’t need to say “hereinafter” or use quotation marks, how often do you really need the parenthetical at all?

Consider the following opening sentences in a brief: “The County of San Diego denies necessary health care to uninsured indigent residents whose monthly incomes are $1,079 or more. The County requires residents with annual income of $13,000 to pay for their own care.” Beginning the brief instead with “The County of San Diego (hereinafter “the County”) . . .” would slow the reader down for no good reason. The reader will know that “the County” means San Diego County without the author saying so.

This does not mean that all acronyms and parentheticals are bad. Some acronyms are so familiar that there is no need for the longer version of their referent. Thus, a public benefits brief can and should say “CalWORKs” without explaining that it’s short for California Work Opportunity and Responsibility to Kids.

The problem is not the use of acronyms and parentheticals; it’s overuse. Western Center’s Style Manual advises attorneys to limit their briefs to three acronyms, and to be similarly skimpy with parentheticals.

Questions you should ask yourself and some tips for answering them:
The best way to do that, as with any persuasive writing, is to put yourself in the place of the reader.  How much will the use or non-use of an acronym or parenthetical slow down the reader?  Is the acronym or parenthetical necessary for the reader’s understanding? Here are some concrete ways to answer those questions:

  • If you are only going to refer to the entity one more time in your brief, you don’t need an acronym, and you especially don’t need it for a single reference;
  • If the second citation to the entity will not take place for many pages, don’t use an acronym, as the reader will not remember it;
  • If the second reference to an entity very quickly follows the initial identification, you may not need a parenthetical. Thus, if your first sentence in a paragraph identifies the United States Department of Agriculture, you do not need a parenthetical before writing USDA in the second sentence;
  • Where possible, refer to entities with whole words. If you first identify the Association of Amalgamated Widget Servicers, sometimes the second reference can be to the Association rather than AAWS. This particularly works better for possessives (e.g., the Association’s rather than AAWS’s).  But sometimes a familiar acronym works best, as in USDA above;
  • Sometimes you will need a parenthetical, but you never need to introduce it with “hereinafter,” which you can safely eliminate from your vocabulary altogether. And while many attorneys still use quotation marks (e.g., Orange County (“the County”), in my opinion they slow down the reader for no corresponding benefit. Orange County (the County) works better.

The impact of some acronyms
Finally, consider that the use of certain acronyms may have a psychological effect. For example, many people who advocate for and represent survivors of domestic violence use the acronym DV. Whatever the value of that acronym for internal use, it should never be used in a persuasive document such as a brief. The phrase “DV” seems innocuous, while “domestic violence” conveys at least some of the horror of what it reports. Similarly, a brief on behalf of a sympathetic group such as Seniors and Persons with Disabilities should not shorten that group to SPD.

But psychology can work in favor of some acronyms. If you are suing the Department of Motor Vehicles or the Internal Revenue Service, why would you ever refer to those opponents as anything other than DMV and IRS? Conversely, should you ever find yourself working for the federal government in a tax case, consider referring to your client as “the Service” if you can do so with a straight face.

Making conscious choices
Reasonable readers may disagree with some of the choices suggested in this Tip. If so, that’s a good thing. Persuasive writing is all about making conscious choices. The more we intentionally ask ourselves whether use of an acronym or parenthetical is necessary for the reader’s understanding or instead will slow down or antagonize that reader, the better we can represent our clients.

California leaders have two weeks to get the state budget right by investing in poverty elimination rather than band aids.

Over the next two weeks, the Governor and Legislature will determine how to spend the state’s $38 billion dollar surplus (closer to $76 billion if you include constitutionally mandated spending). The Governor has requested nearly 400 new spending proposals, many of them one-time investments to be spent over several years. There are many worthy proposals in the Governor’s budget — most demonstrably, a $12 billion commitment to reduce homelessness.

California is one of the wealthiest places on earth. We have more billionaires than any other state and our per capita income ranks 6th among states at over $71,000 a year. California residents, by far, pay the most in federal income taxes, exceeding New York by roughly $90 billion annually. We have a highly progressive state tax structure that asks those with the most to pay more. This wealth provides the largest budget of any state in the nation. But for all its wealth, California has a dark side.

More than one in six children lives in poverty in California. 450,000 California children are estimated to live in households that earn less than half of the abysmally low federal poverty level. This is often referred to as deep poverty. Research shows that children who live in deep poverty experience a form of toxic stress that slows normal brain development, results in lower educational achievement, higher risk of chronic health conditions, and lower earnings as adults.

For decades, California has provided sub-meager grant levels to people who are disabled (Supplemental Security Income (SSI), families with kids (CalWORKs), and indigent single adults (General Relief). For years, CalWORKs grants were worth less than 40 percent of the federal poverty level, at around $700 a month. That’s a program for kids and families living deep poverty, where the family income is less than 50 percent of the poverty level. Due to ridiculously low CalWORKs grants, these families are housing unstable, and must occasionally use homeless services.

Former Senator Holly Mitchell led the effort to increase CalWORKs grant and succeeded when Governor Brown committed to a three-step increase to prevent children on CalWORKs from living in deep poverty. Though Governor Newsom did provide the second of the promised increases, his current budget doesn’t finish the job. It provides an increase that falls short of eliminating deep poverty among children.

To his credit, Governor Newsom gets it. In addition to following through on the second of the CalWORKs grant increases in his first budget, one of his first acts as governor was a refundable $1,000 child tax credit for families in poverty, paid for by closing corporate tax loopholes. Legislators and advocates believed that the dream of ending childhood deep poverty in California would finally happen in the 2020-21 budget, but then COVID hit. Millions of people lost jobs and the state’s revenues plummeted. California could no longer afford to end deep childhood poverty, or so we thought.

As it turns out, the state’s revenues quickly rebounded, since billionaires made so much money during the pandemic. California ended up with the largest surplus in its history.

Even so, Governor Newsom did not include funding to end childhood deep poverty in his 2021 May budget announcement, instead offering a modest, insufficient grant increase for CalWORKs. It is simply unacceptable that one of the richest places on earth will continue to allow children to live in abject poverty.

Similarly, the Governor offered a modest $10 a month increase to SSI recipients who are blind, aged and disabled. Over the past decade, the standard of living for SSI recipients has degraded due to the elimination of state cost of living adjustments and the resistance by successive governors to restore cuts made during the Schwarzenegger and early Brown administrations. California saved over $10 billion with those cuts and kept them in effect even when the state was running substantial surpluses with large reserves.

Against this backdrop, Senate Budget sub-committee #3 considered the Governor’s 2021-22 SSI proposal. The empathetic new chair, Senator Susan Talamantes Eggman, noted that the proposal leaves SSI recipients below the poverty level, and that she is helping a friend living on SSI just to make it month to month. Single, indigent adults leaving the criminal legal system have it even worse, with paltry assistance upon release and $221 in General Relief they can use for housing. In fact, 70% of Californians experiencing homelessness have a history of incarceration. It’s all a recipe for instability.

Governor Newsom really wants to do something about homelessness, which is good, but it doesn’t matter how much we spend on housing and services if we don’t slow the stream of people losing their housing due to poverty.  California is using austerity tactics on people in poverty, getting the same results over and over again. Now we’re funding a $12 billion emergency program to fix the carnage. If we want to end homelessness, we must give people the money they need to stay stably and safely housed.

State governments are afraid to provide benefits it may have to cut down the road and believe that a way to save money is to deny adequate levels of assistance. What legislators fail to see is that the reluctance to spend money upfront causes enormous downstream costs. Homeless services, child welfare, emergency food, and foster care are not free, but require funding at ever increasing amounts. If we simply invested to keep people housed and healthy from the get-go, rather than forcing them to live in a constant state of toxic stress caused by extreme poverty, we might not have that problem.

In the next couple of weeks leading up to the budget deadline, the Legislature has a chance to end this shameful chapter in our history by using this year’s surplus to reverse toxic trends that reinforce poverty. Grants for SSI and CalWORKs should be substantially raised so no one is homeless, and the same level of benefits should be provided to people coming out of the criminal legal system and those on General Relief.

This is California, the 5th largest economy in the world. We can and must do better.

 

As California closes prisons, we must protect people who were incarcerated from falling into homelessness

Over the past several years, California has taken steps to address overcrowding in prisons by implementing a series of reforms to reduce prison populations. With approximately 97,000 people currently in the state system, California reduced its prison population by 25% over the last decade, and closed locations to save the state billions in operating and repair expenses. But the closures shed a harsh light on the broken system of support for people struggling to re-enter society after prison.

By repairing the cracks in the system, we can create a path for meaningful recovery and also aid the communities that welcome them home. Assembly Bill 328, introduced by Assembly Members Chiu, Kalra, Quirk-Silva and Wicks, will ensure that the money the state saves by reducing its prison population goes directly to help people who were incarcerated find stable housing upon release. Sounds like common sense, right? It is — here’s why.

After their release, many people who were imprisoned lack stable housing and have no access to employment, education, and life skills services, resulting in an increased chance of recidivism and homelessness. This hits communities of color particularly hard, as Black people and Latinos are overrepresented in prison populations compared to white people. One study concluded that formerly incarcerated people are almost 10 times more likely to be homeless than the general public — in California, 70% of people experiencing homelessness have a history of incarceration. 

The Prison Policy Initiative found significantly higher rates of unemployment and homelessness among women who were incarcerated (especially women of color), who are less likely to have a high school education compared to formerly incarcerated men. Without viable housing options and support services, women on parole who were victims of domestic violence often return to abusive households, putting their lives at risk. 

California must earmark funds for programs and staff that help people who were incarcerated break these cycles, and provide much-needed support services to stabilize their lives and realize a better future. AB 328 will redirect savings from the California Department of Corrections and Rehabilitation to the Reentry Housing Program to house and provide services for people who were incarcerated and experiencing or at risk of homelessness. Another portion will go to other services to help people effectively reenter society. 

Redirecting money as AB 328 proposes will also save money for the state: it costs over $90,000 per year to incarcerate someone in California; providing housing with supportive services costs about $20,000. More than 30,000 people will be released every year for the next five years — a targeted housing program will save taxpayers and the state millions of dollars and prevent thousands from becoming homeless. 

By providing people who are released from prison a safe, decent place to call home, they can focus on learning new skills, resolving health issues, finding and securing work, and ultimately, escaping poverty. California lawmakers and reentry organizations must prioritize housing and provide the services people need so they can successfully reenter society and forge a new life. 

 

 

What the heck is ‘Land Use’ policy and why should I care?

When I was 14, my parents picked up our lives in the Bay Area and re-located to a mostly white suburb outside of Sacramento. I immediately felt like an alien landing on a different planet for the first time. Everything was bigger — the roads, the cars, the homes, the parking lots. The houses had manicured lawns and were painted in a similar muted color palate. But for all that extra space, the people were hidden. No busy crosswalks, no large freeway overpasses, no parks packed with children and families.

When searching for furniture to furnish our new two story home (a complete and utter dream of mine) we found ourselves in a crowded RC Willey. “Mom, I think we’re the only brown people in here,” I said to her under my breath.

The awareness of being outnumbered had never struck me before, yet suddenly I was cognizant that this place was very different than the places I lived before. When we returned to visit my grandmother in Richmond on the weekends, I noted the apartment complex among apartment complexes. The liquor store on the corner (we didn’t have those in walking distance in my suburb), and the close proximity to the freeway. I’ve recently realized that this was not by accident, but by purposeful decisions made federally, statewide, and locally. As it turns out, the invisible force behind the makings of our surroundings and communities is land use policy.

When I joined Western Center in January of this year as a housing advocate, I thought a lot about my own experiences and recollection of community against the backdrop of our current housing and affordability crisis. The state of California has an astronomical lack of affordable homes, with a recent study showing that we’ll need “1.2 million more affordable homes by 2030 – approximately 120,000 per year – to keep pace with demand.”[1] According to the Department of Housing and Community Development, California is producing only 80,000 units on average each year – and only a tiny fraction of those affordable to renters with extremely low-incomes. That gap is alarming when you consider how dire the consequences are for priced out Californians.

On any given night, there are upwards of 150,000 unhoused Californians sleeping on the street or in their cars. We’re falling behind in building the affordable units needed to house them, and decades of land-use and related policies have incentivized the production of market rate development over affordable, subsidized housing.

Widely seen as a “statewide” crisis affecting all Californians, the housing crisis acutely impacts Black and indigenous communities, as well as people of color generally (BIPOC). California has seen a maddening increase in levels of homelessness among communities of color; notably, Black people represent only 6.5% of the state’s population, but account for nearly 40% of California’s unhoused.

Black people, Native Americans, and Latinos are more likely to experience homelessness and overcrowded housing than white people[2]. They are more likely to be low-wage workers, more likely to be rent-burdened, and more likely to contract and die from Coronavirus[3]. Clearly, the housing crisis is also a race and equity crisis.

The data is overwhelming, and California has taken strides to confront the problem by reexamining its approach to housing and development. In response to the clear lack of affordable housing units available and a growing narrative that the source of the crises is a lack of housing supply, legislators have introduced a large slew of bills related to housing production and land use.

But what is land use policy? As I continue to learn in this policy arena, the more I realize it’s been a tool used to advance racist and exclusionary policy, which has led to a segregated California. But I’ve also learned that land use policy can be a tool to address the problems its created.

At its most basic level, land use policy is the control, rights of property, and act of mapping and planning land by its ideal use. One can imagine how a small city would choose to build a water tower near a river, for example, or choose to build homes and parks far from an industrial waste site. An umbrella term, land use encapsulates a set of tools and laws that dictate where we build, how we build, and for whom.

Those decisions not only create the physical makeup of cities and towns, but also have implications for our wellbeing and overall health. For example, living near a freeway and other pollution sources are shown to reduce a person’s life expectancy, and lead to a multitude of health problems and birth defects. Where we live is just as important as how.

Land Use: A Racist Beginning

In many ways California represents the epicenter of housing policy in the United States. In 1904, Los Angeles was the first city in the nation to implement land use restrictions.[4] Initially prohibiting industrial uses in residential districts, Los Angeles soon divided itself into areas designated for certain uses, also known as zoning. Cities across the country began to zone their land for different sets of uses: single-family homes, multi-family homes, industrial plants, multi-purpose areas. In addition to designating uses, cities created requirements related to the size, height, and appearance of buildings.[5]

1904 represents the beginning of zoning ordinances on paper, but the act of designating space for specific uses or people was in place for much longer and has a racist and exclusionary history. In the late 19th and early 20th centuries, cities across the United States implemented policies to control where Black people and immigrants lived. Single family housing, houses that could be sold for much higher prices, were favored over multi-family homes. Early on, single family homes became a commodity designated for white people, while people of color were pushed into denser, less desirable areas. Racially exclusionary zoning policies are the foundation for the racial and economic segregation that we see in our communities today.

The Supreme Court issued a landmark decision finding overt racialized zoning to be unconstitutional challenged in 1917. Louisville, Kentucky had a city ordinance prohibiting Black people from buying a home or occupying any location in majority white neighborhoods. When William Warley, a Black man, attempted to purchase a home in a majority white neighborhood, the local ordinance was used to prevent him from completing the purchase. The case went all the way to the Supreme Court where the justices voted unanimously to strike down explicitly racist zoning requirements across the U.S.

Despite that win, the same practices were perpetuated through other means and proxies. Emerging from the Buchanan decision was an acceleration of the practice of racially restrictive covenants. Rampant until 1948 when the Supreme Court declared them unconstitutional, racial covenants were private agreements that put limits on who could purchase a property based on their race or religion.[6] Almost all racial covenants prohibited the selling of homes to anyone other than a white non-Jewish person.[7] The stipulations on the contracts were so severe that if the contract was violated and the home was sold to a person of color, the property would return to the original homeowner.[8]

In addition to exclusionary zoning and racial covenants, perhaps the most damaging policy is one known as redlining. After suffering a financial collapse in 1929, the United States was thrown into the grips of the Great Depression, subsequently spurring action on a variety of policies in an attempt to reform the economy. The federal Home Owners Loan Corporation (HOLC) was created in response to an onslaught of home foreclosures, which overhauled mortgage and lending practices to spur home buying.[9]

HOLC deliberately assessed neighborhoods and adjusted their lending practices using a race-based risk model. Maps of neighborhoods, divided by color-coding, marked whether a neighborhood was desirable (green=all white neighborhood) or (red=’high risk’ and containing people of color). Black people were denied loans and housing opportunities en masse. The policy proved to be one of the largest state-sanctioned discrimination plans in history. “Between 1934 and 1962, the federal government issued $120 billion in home loans, 98% of which went to whites.”[10]

For better or worse, the American Dream was idealized as a house with a large yard, and that dream was purposely denied to Black people, people of color, immigrants, Jewish people, people who were disabled, and many more. The dark history of redlining is directly connected to negative environmental impacts, and wealth gaps affecting people of color that still reverberate today and lead to severe COVID-19 impacts in Black communities.

Despite identifying the wrongs of the past, our institutions are only recently coming to terms with their role in continuing segregation trends, and directly atoning for them. In March of 2021, Evanston, a small town in Illinois, agreed to provide Black residents with reparations to be used towards housing. A first in the nation policy, Evanston recognized the damage their housing policies have had on their Black residents, proclaiming, “The Local Reparations Restorative Housing Program (“The Program”) acknowledges the harm caused to Black/African-American Evanston residents due to discriminatory housing policies and practices and inaction on the part of the City.”

The U.S.’s history of racial segregation, whether enshrined in law or not, permeates all housing policies and our lives today. Reparations are one way to directly correct past failures of government, but there is still not a clear understanding of all the ways governments have or can deal with those harms, or how land-use policy might now be used to build a better future.

Turning the Tide – The Building Blocks of Affordable Housing Development

In the middle to late 1960’s, the confluence of political and civil rights movement and the Vietnam War culminated in powerful anti-discrimination legislation. Shortly after Dr. Martin Luther King Jr’s Assassination in 1968, then President Lyndon Johnson signed the Fair Housing Act, which prohibited the use of race, religion, national origin, sex, handicap and family status as a means to deny a person rental housing or financing.[11] A year after that, California passed The Housing Element Law which required local and state governments to adequately plan to meet the housing needs of everyone in the community for the first time.[12]

Breaking that down: Each municipality in California must have a roadmap for growth in their community called a General Plan. The General Plan is comprised of seven elements: housing, land use, circulation, conservation, open space, noise, and safety. When the Housing Element was added in 1969, it signaled a commitment to build appropriately for the future. The Housing Element Law began the trend of “inclusionary zoning” – zoning that accounts for the needs of people with low incomes, as opposed to “exclusionary zoning,” which is used to describe policies that effectively make it impossible for people with low incomes to live in a place.

The Housing Element law was further refined and strengthened in 1980, and ensures that local planning consider the amount of housing stock available to all income levels, and plans on ways it can lower regulatory barriers to meet housing production goals for each income level.[13] The amount of units needed per income level is described as the cities’ Regional Housing Needs Allocation (RHNA).

Housing Element law is the main vehicle through which the state affects local housing and land use policies, and includes considerations for the preservation, improvement, and development of housing. [14] It’s important to note that despite Housing Element law requiring planning, it does not require that the actual housing be built. That distinction is important and partly explains why California has historically lagged behind in meeting its affordable housing goals. Despite the state’s best efforts to compel local jurisdictions to plan for low-income multi-family housing or public housing, in practice, affordable housing developments are vehemently opposed and face a myriad of challenges in order to gain approval.

Incentivizing the Right Kind of Development

In addition to Housing Element Law, there needed to be an incentive to build low-income housing. The answer came in 1976, when California policymakers passed the most sweeping affordable housing incentive bill, known as the Density Bonus Law (DBL). DBL is currently California’s best tool to leverage and expand affordability, yet it remains unknown to most Californians and is severely underutilized.

The law is famously complicated, but exists to motivate developers to build affordable units by offering them concessions and bonuses in exchange.[15] The concept behind DBL is simple – it’s a give and take model that allows developers to increase the density of their project (adding more units), if they include housing dedicated to low-income and sensitive groups. It’s a win for the developer because “denser” buildings contain more units that the developer can make money on, and it’s a win for cities because desperately needed low-income housing gets built. Additional sweeteners are included, like lowering minimum parking requirements, reduced fees, expedited permitting, and eased height, transportation, and parking requirements.[16]

DBL and other laws that focus on public actions creating public benefit are examples of land value capture policies.[17] Simply put, land value capture ensures that a community can reap the benefits of a private, public, or government investment. When you remove constraints that allow a larger project to be built on a site than would otherwise be allowed under local zoning or you remove parking requirements or other things that save money, you create additional value. That value is then used to subsidize the affordable units. If a developer wants to take advantage of low prices in a low-income neighborhood to build housing, that developer should have to provide the surrounding neighborhood with the value of more affordable units.

Gentrification and Displacement

Fairly often, the response to the affordable housing crisis is build, build, build. Many believe that by adding more housing stock to the market, the housing demand will lower and so will housing costs. Unfortunately, the price of rental housing isn’t entirely driven by demand, it’s driven by profit.

Envision a plot of land zoned for a single family home — a developer could sell that home for $100,000. But if the developer can create a 10-unit high rise on the same plot of land (known as up-zoning), they can multiply profits by 10. However, up-zoning does very little to support affordability, and in turn can exacerbate gentrification in low-income communities.

Take for example, cost pressures in the Bay Area. When certain industries moved close by, housing production increased, but the majority of homes were financially out of reach for longstanding communities. Building without the promise of affordability will always lead to higher rental prices. High rises and homes that are only inhabitable for people with moderate to high incomes do nothing to support people with low incomes, and those close to homelessness. Instead, it displaces community members and fuels gentrification.

Land Use Going Forward

I’ve named only a few historical anecdotes, concepts, and factors at play in California. Land-use policy as a whole is rarely mentioned in political speeches or the evening news, but the implications are far-reaching. Not one state in the U.S. has a large enough supply of affordable housing for people with the lowest incomes.[18] That devastating statistic has been true for too long.

Housing advocates across the nation are doubling down on efforts to expand equitable development and land use incentives to address the crisis at hand. To dismantle racist structures that minimize opportunities for BIPOC, we must re-commit to building equitably, which means using incentives and backstops like the Density Bonus Law and No Net Loss statute. Land value capture schemes should be employed in local land use policies as a tool to force the market to account for the most vulnerable.

Equity takes work. History shows that it’s not enough to simply end the practice of segregation or redlining; it takes effort and diligence to dismantle structures that continue to perpetuate racist and inequitable trends. An equity-centered approach to housing development and land-use policy requires local community input, a focus on affordable housing preservation, land value capture, and anti-gentrification measures. When someone says the answer is to build, you must ask: how? And for whom? A well thought out and nuanced vision for our housing stock is needed now.

I have the great fortune of having a roof over my head, in a community that I truly enjoy. I fundamentally believe that all people deserve that same benefit. As I continue my role here at Western Center, I hope to learn more and bring others along with me as I de-mystify land-use policies so we can fight back against longstanding injustices and build a healthier, stronger future.

Land Use Terminology:

  • Land Use — The planning, control, and rights of property.
  • Zoning — Tool used to govern “uses” (e.g. residential, commercial, or industrial), the size of buildings, and how buildings relate to their surroundings, including other buildings, open spaces, and the street.
  • By Right — “By right” development refers to a project that is permitted under zoning rules and is approved administratively without discretionary local government review. Because it relaxes the review process, it’s often seen as a positive tool to ensure that affordable units get built.
  • Infill Development — Building within unused and underutilized lands within a community, typically but not exclusively in urban areas. “Urban infill” implies that existing land is mostly built-out and what is being built is in effect filling in the gaps. Example: Re-purposing an empty parking lot
  • Regional Housing Needs Allocation (RHNA) — Pronounced “reena.” Regional number of housing units needed to meet the housing needs of people in four income categories: very low, low, moderate, and above moderate. This number is critically important in completing a jurisdiction’s Housing Element.
  • Land Speculation — Purchasing undeveloped or affordable land and holding it for an indefinite amount of time in order to sell it when the value of the property significantly increases. Example: A developer purchasing an empty lot in a downtown city core and selling it for significantly higher once the surrounding community becomes gentrified.
  • Inclusionary Zoning — Municipal and county planning ordinances that require a given share of new construction to be affordable for people with low to moderate incomes.
  • Exclusionary Zoning — Local land use zoning practices that effectively bar low- and moderate-income households from finding adequate housing in a given jurisdiction.[19]
  • Land Value Capture — Policy approach that allows communities to recover land value from development projects.

 

[1] https://1p08d91kd0c03rlxhmhtydpr-wpengine.netdna-ssl.com/wp-content/uploads/2021/03/CaliforniaHousingNeedsReport_2021-CHPC.pdf

[2] https://endhomelessness.org/homelessness-in-america/what-causes-homelessness/inequality/

[3] https://ucla.app.box.com/s/t8x503d781kfmocclgdgeibielo0q234

[4] https://www.planning.lacity.org/zoning/new-code

[5] https://www.bloomberg.com/news/articles/2012-06-19/the-birth-of-zoning-codes-a-history

[6] https://www2.law.umaryland.edu/marshall/usccr/documents/cr11042.pdf

[7] https://www.kcet.org/shows/city-rising/how-prop-14-shaped-californias-racial-covenants

[8] https://lapl.org/collections-resources/blogs/lapl/los-angeles-land-covenants-redlining-creation-and-effects

[9] https://ternercenter.berkeley.edu/wp-content/uploads/2021/03/Crisis-Response-Recovery-March-2021-Final.pdf

[10] https://storymaps.arcgis.com/stories/f167b251809c43778a2f9f040f43d2f5

[11] https://www.hud.gov/program_offices/fair_housing_equal_opp/aboutfheo/history

[12] https://www.hcd.ca.gov/community-development/housing-element/index.shtml

[13] http://www.pilpca.org/wp-content/uploads/2020/08/PILP-California-Housing-Element-Manual-Law-Advocacy-and-Litigation-4th-Edition-January-2019.pdf

[14] https://wclp.org/wp-content/uploads/2017/01/Affordable-Housing-Manual-Chapter-07.pdf

[15] https://srcity.org/DocumentCenter/View/18475/Density-Bonus-Policy-White-Paper?bidId=#:~:text=The%20California%20State%20Density%20Bonus,and%20growing%20affordable%20housing%20needs.&text=Density%20bonuses%20and%20associated%20incentives,constructing%20affordable%20or%20specialized%20units

[16] http://californialanduse.org/download/Terner_California_Residential_Land_Use_Survey_Report.pdf

[17] https://www.oecd.org/cfe/cities/Flyer-Land-Value-Capture.pdf

[18] https://nlihc.org/housed?utm_source=NLIHC+All+Subscribers&utm_campaign=e8706eab54-CTA_040621&utm_medium=email&utm_term=0_e090383b5e-e8706eab54-293365962&ct=t(CTA_040621)

[19] https://www.sacog.org/sites/main/files/file-attachments/exclusionary_zoning_updated.pdf?1602716263

Our fight for emergency food benefits was worth it, for me and every Californian who needs it.

One silver lining of the pandemic, if there can be such a thing, is that it brought into focus issues facing our society that were bubbling just beneath the surface, but didn’t get much attention in our public consciousness before. Inequality, exclusivity, racial divisions – we had no concept of what it truly means to be “all in this together.”

Another issue, though not new, is urgency around hunger in America. The pandemic shows that it’s not just the poor and underserved who have to deal with food insecurity — in times of emergency, many of us are just one or two paychecks away from the same situation. We’ve all seen the pictures of people lined up for miles to get food boxes from their local food banks, and even now, as we move toward re-opening, long lines persist. People who thought it would never happen to them now wonder how to put enough food on the table for their family. I was one of those people in 2009 during the great recession when my company closed, my money ran out, and I spent that year homeless.

For generations, food stamps, known as CalFresh in our state, have been the best, most effective program for helping to alleviate hunger. Initially, back in March of 2020 I was relieved to hear that during this national emergency, as part of the first relief package, the federal government provided emergency allotments to increase food stamps “for everyone.” But there was a flaw in that policy that left some people out, including myself. Emergency allotments were given to every CalFresh recipient except those already receiving the maximum amount for their particular household – in other words, those with the lowest incomes. One year ago, that affected me, since I was receiving CalFresh between jobs — I was supposed to start a new job on March 13th, the same day shelter-in-place orders came down and my job offer was rescinded.

As a long time anti-hunger advocate, I was happy to be represented by Western Center and Impact Fund in a lawsuit against USDA seeking permission for California to distribute emergency allotments to people receiving the full benefit amount. The lawsuit is important to me not only because I am living through the pandemic and my emergency is no less urgent than anybody else’s, but also because part of USDA’s 2020 policy played into myths, misinformation, and downright lies about CalFresh and the people who use it. Given my own personal experience, and as an advocate, I wanted to make a point of busting those myths.

The majority of CalFresh recipients are families, work at least part time, or are seniors. We can’t spend our food benefits on alcohol and cigarettes, and we don’t buy junk food out of proportion with the general population. The reality of living with food stamps is that no matter your benefit amount, with the cost of living in California, it’s often not enough to cover a household food budget for a month. Most families supplement their food stamps by going to food banks or a partner agency to get food boxes. Plus, they spend their own money from work. I saw being part of this lawsuit as an opportunity to make these points again, and I am grateful to be a part of it.

Our lawsuit was ultimately settled, and USDA also announced a change of policy that will allow people receiving the maximum food benefit every month to also receive emergency allotments, as long as there is a declared emergency. Thanks to Western Center and Impact Fund for all their work in the past and in the months to come.

 

Steve Summers is an Oakland resident and long time Anti-Hunger Advocate in Alameda County. He spent a year homeless during the great recession of 2008/2009 when he first became a CalFresh recipient. His most recent job was as a Naturalist for the City of Oakland. In 2017 he received a Hunger Fighter Award from the California Hunger Action Coalition.

Spring 2021 Federal and California COVID-19 Relief Actions

Between federal and state funding, Californians can expect help in different forms over the next few weeks, and likely beyond. Below you will find information about some of the money coming down for you or for programs you work with and/ or rely on.

 

DIRECT PAYMENTS, TAX CREDITS, CHILD CARE, & EMERGENCY FUNDS

  • The American Rescue Plan, signed by President Biden on March 11, 2021, provides $1,400 direct payments, which will go out immediately to about 159 million households. Checks will be a maximum of $1,400 per individual, or $2,800 per married couple, plus $1,400 per dependent.
    • Payments are based on your most recent tax return. Individuals who file taxes using an ITIN will not get a federal stimulus payment, but anyone filing with a Social Security Number will receive a payment.
    • Individuals earning up to $75,000 in adjusted gross income, heads of household with up to $112,500, and married couples filing jointly with up to $150,000 will get the full $1,400 per person.
    • The plan also includes $300 in bonus unemployment benefits until September 6th, and makes the first $10,200 of unemployment benefits nontaxable for those with incomes under $150,000 per year.
  • The American Rescue Plan also increases SNAP food benefits by 15% through September, and allocates $1 billion for the TANF (Temporary Assistance for Needy Families) Pandemic Emergency Fund. California will receive $203 million in TANF emergency funds that can be used for payments to families for non-recurring costs like rental debt or to provide housing assistance.
  • California has a separate $600 direct stimulus payment program, which will go out to 5.7 million Californians once their taxes are filed. Eligibility for the state stimulus includes:
    • Those who qualified for the state Earned Income Tax Credit on their 2020 tax returns (usually those making less than $30,000, and some undocumented and mixed-status families).
    • Individual Tax Identification Number (ITIN) holders who are excluded from federal stimulus checks and have incomes below $75,000.
    • Households enrolled in CalWorks, SSI/SSP recipients, and Cash Assistance Program for Immigrants (CAPI) recipients.
    • ITIN taxpayers who qualify for the California Earned Income Tax Credit will receive a total of $1,200.
  • The American Rescue Plan raises the maximum Earned Income Tax Credit (EITC) for adults without children from $543 to $1,502.
  • The American Rescue Plan expands the child tax credit for one year. Previously, most families received up to $2000 in tax credits per child under age 17; under the new plan, most parents except the very highest earners will receive a $3600 payment for children 5 and under, and up to $3,000 for children between 6-17. This includes families without taxable income.
  • The American Rescue Plan temporarily increases the value of the child and dependent care tax credit, which currently covers 35% of care expenses up to $3,000 for one dependent or $6,000 for two or more dependents.
    • Overall, the plan provides $39 billion for child care through:
      • $15 billion for the Child Care and Development Block Grant (CCDBG).
      • $24 billion for newly created child care stabilization grants.

HEALTH

  • The American Rescue Plan provides $0 premiums for people enrolled in Covered California earning less than 150% of the federal poverty level or who claim unemployment anytime during 2021. It provides additional premium support for people who earn more, and forgives excess premium support given in 2020 that people would normally have to pay back.
  • The American Rescue Plan covers more of the state’s Medi-Cal costs, like home and community based services, and a 100% federal match for COVID-19 vaccines given by Medi-Cal.
  • The plan also provides a state option to extend postpartum Medicaid for 12 months instead of 60 days. California currently does this only for people diagnosed with a mental health condition within the 60 day postpartum period.

HOUSING

  • California received $2.6 billion in federal rental relief from the COVID-19 package passed in December 2020; those funds became available on March 15, 2021.
    • Renters who make under 80% of an area’s median income are eligible for rental assistance under California’s SB 91. Landlords must apply for the assistance, and agree to waive 20% of rent owed between April 1, 2020 and June 30, 2021 – the remaining 80% will be paid by government funds.
    • If a landlord refuses to participate, renters can still apply to have 25% of back rent paid.
    • Cities and counties may distribute rent relief funds differently.
  • The American Rescue Plan provides an additional $21.6 billion in emergency aid for renters with low-incomes who have lost income or are experiencing hardship from COVID-19 and at risk for eviction. The plan includes:
    • $5 billion for emergency housing vouchers to support those recently homeless or at risk of experiencing homelessness.
    • $750 million for tribal housing needs.
    • $100 million for rural households living in USDA-financed properties.

If you think what’s happening to Britney Spears is bad, you should know more about conservatorship in California

Free Britney – the call to end the conservatorship of superstar Britney Spears has expanded across the globe, thanks to a grassroots movement recently bolstered by the New York Times documentary, “Framing Britney Spears.” Since the beginning of her conservatorship critics have demanded its termination; advocates were first dismissed as overzealous fans, but their claims were based on facts uncovered in legal filings, raising legitimate concerns about the probate court system. Spears’ case, while singular in fame and fortune, illustrates the complications of conservatorship, particularly in California.

Britney Spears has been under conservatorship since 2008, though, she continues to fight it in court, and she continues to be highly productive. Paradoxically, Spears has been denied the freedom to make phone calls, operate a motor vehicle, and access her finances, all the while recording four studio albums and performing in four world tours, in addition to a four-year Las Vegas residency.

It is often the case, as it appears to be with Spears, that conservatorship is inappropriate or inadequate for the problem it seeks to solve. Nevertheless, California legislators continue to propose expanding the conservatorship system – 2021 legislative session included.

There are different conservatorships in California. One stems from the 1967 Lanterman-Petris-Short Act (LPS), which established California’s system of conservatorship and involuntary treatment for people who are gravely disabled — meaning they can’t meet basic needs. Those conservatorships are initiated by medical or legal professionals. Another, known as probate conservatorship, has less stringent standards and can be initiated by anyone, including parents. Probate conservatorship, which is what Spears is under, is meant to protect people who are unable to provide for their own needs, or to protect them from undue influence.

Spears’ case illustrates how extreme conservatorship can be – even for someone as wealthy and famous as she; it also represents the tip of a large iceberg. If one of the most successful pop stars of the century can be deemed unfit to control her life, what happens to people who don’t have nearly the amount of fame or money?

Britney Spears can work and make money, even though conservatorship is supposed to be for people who can’t. For those in the system without money, they or their families sometimes receive astronomical bills (in the one-million-dollar range) upon release from California’s State Hospital system, which treats individuals with severe disabilities under LPS conservatorship. The bills say the state can go after the former patient’s spouse, children, parents, and estates for payment. Still, in spite of the potentially devastating financial and psychological effects, California continues efforts to expand conservatorship as a solution for mental illness, instead of addressing root causes for what leads people to be conserved.

Last year, a proposed ballot measure misleadingly titled the “California Compassionate Intervention Act” aimed to make it easier for police to detain people on the street who exhibit signs of mental illness, and to eventually conserve them. While the measure did not make it on the ballot, it received substantial attention.

Other measures also sought to expand forced conservatorship, despite the fact that advocates and mental health practitioners say often and repeatedly that the problem should first be addressed by adequate wrap around services — mental and physical health care, housing, and economic resources at earlier points in a person’s life. Instead of making sure those needs are met, California continued with legislation like SB 1045 and its amendment, SB 40, which allows participating municipalities to force people sent to mental health treatment more than eight times in one year to be automatically conserved.

Though SB 1045 and SB 40 were highly controversial and some counties chose not to participate, their passage shows the appetite for conservatorship as an answer to California’s fundamental social failings. That appetite included other failed proposals, like AB 1971  and AB 2156, which would have expanded to definition of “gravely disabled” to make conservatorships easier to obtain.

Also last year, the state auditor found that under California’s conservatorship system, many people who are conserved end up with limited treatment options – conserved with nowhere to heal. Additionally, the auditor found that once people are released from involuntary holds, most do not get follow up treatment. What’s more, there is also confusion over how public dollars are spent for mental health programs.

The case of Britney Spears exposes how well-intentioned policy can create extreme and undesirable outcomes. While the decision to control a person, their finances, and their movement may seem like a straight-forward solution, what the state auditor’s findings show is what advocates and mental health professionals have said all along – longer term solutions for mental illness, homelessness, and other factors leading to conservatorship involve addressing the root cause.

Does everyone have access to long-term housing, treatment for major trauma, access to drug treatment programs, and access to mental and physical health care throughout their life? Or in Britney’s case, refuge from constant prying eyes and abusive, stalking paparazzi and a bloodthirsty public? The answer is no, California has not invested nearly enough to ensure that those very basic needs are met. In light of inaction on those fronts, expanding conservatorship is not a solution, but rather, a surface fix that will never address the poison at the base of the well.

 

Courtney McKinney is the Director of Communications for Western Center on Law & Poverty. Kevin Wu is a Free Britney activist and runs @freebritneyla. He is featured in “Framing Britney Spears.”

U.S. and California History Directly Impacts Housing Instability during COVID-19

We are one year into the COVID-19 pandemic, and the foundation of California’s precarious housing policies are crumbling, leaving a disproportionate number of Black, Indigenous and people of color (BIPOC) with low incomes vulnerable to mass evictions, housing instability, and homelessness.

It’s a sad reality, but not surprising since California’s housing laws and policies were built on a foundation of racism and white supremacy. Colonization and land theft by European settlers led to the devastation and genocide of Native communities, and planted seeds for centuries of racialized housing practices that we still see today. Generations of government sponsored housing segregation and private discrimination keep BIPOC communities in poverty, contribute to the racial wealth gap, and is a direct cause of housing instability for BIPOC communities during this deadly pandemic.

BIPOC communities are the hardest hit by the pandemic, which is partially a result of historic and current political decisions to uphold white supremacy within housing policies. To understand how and why we are facing an immense economic and housing crisis for millions of people within our communities, we must understand and accept that the housing system was sanctioned by the government to keep BIPOC communities segregated. Only then can we begin to heal and work toward a more equitable future.

In 1934, the federal government created the Federal Housing Administration, which is often applauded for making home-ownership accessible to many Americans by guaranteeing home loans. But the FHA explicitly refused to guarantee home loans for Black people or to even insure mortgages in white neighborhoods where Black people were present.[1] The policy ensured that neighborhoods were racially segregated, often to the detriment of Black neighborhoods. If a Black family could afford to purchase a home, exclusionary zoning kept them out of white neighborhoods, forcing them into devalued, low-income neighborhoods. That had a profound impact on Black families’ ability to acquire wealth through homeownership, and in turn prevented them from passing down generational wealth. Black families today have disproportionately less generational wealth than white families, placing them at increased vulnerability for economic crashes and job insecurity as seen during the COVID-19 pandemic.

Not only did the federal government obstruct homeownership for Black families, but local governments in California, particularly in the Bay Area, also promoted racial segregation, which kept Black Californians in poverty. In the 1940s, the city of Richmond, California, led by the federal government, created racially segregated neighborhoods to accommodate the growing Black population. However, those publicly funded buildings were poorly built and resembled shanties. Communities were also created for white war workers that explicitly forbade any newly constructed homes from being rented to Black people, forcing Black people to rely more and more on public housing, blocking upward financial mobility.[2]

San Francisco, one of the most liberal and forward-thinking cities in the Bay Area, intentionally segregated Black communities by forcing them into public housing in Hunters Point and the Western Addition.[3] These local policies created “ghettos” whereby Black families were forced to remain in “undesirable,” poverty stricken urban neighborhoods. Now those neighborhoods are facing unprecedented attacks, enduring economic devastation from the pandemic and increasing gentrification and displacement from the same developers who undervalued the neighborhoods.

Those racially discriminatory practices did not end, but continue to impact Black communities today. In 2008, many Black neighborhoods were devastated by the financial collapse caused by predatory subprime mortgages.[4] Since many Black families lost their homes and savings, they were thrust into housing instability with little to no financial safety nets. The federal government did not provide support for low-income residents harmed by predatory lending, but instead decided to bail out the predators – the banks. In a particularly appalling move, the federal government sold those foreclosed properties to large private equity firms, rather than non-profit developers or residents, allowing corporate landlords to monopolize the housing market.

Today, corporate landlords use homeownership and “house-flipping” as a way to further concentrate their wealth on the backs of BIPOC communities, causing long-term harm. Due to these policies, our communities have a rational fear that another housing crisis similar to 2008 is coming, which will lead to more corporate ownership of California’s scarce housing stock.

Since BIPOC communities are being sold to corporate owners, many BIPOC people must rent, which also causes housing instability. Housing instability stems from the tangible problem that people simply cannot afford rent. Since 1990, rent prices in California have skyrocketed as wages stay primarily stagnant.  For example, in 1990, the average one-bedroom apartment was $799; today that same one bedroom is $1400.

Studies show that Black renters pay more for housing than white renters for units with similar characteristics in similar neighborhoods, simply because the renter is Black.[5] Additionally, the median income for Black renter households was $32,140, compared to $42,000 for Hispanic renter households, $45,000 for white renter households, and $62,220 for Asian renter households.[6]  In 2018, the California Housing Partnership Corporation found that renters need to make 3.5% the minimum wage, or about $38.54/hour to afford median rents.

Given the high cost of rent, it’s no surprise that prior to the COVID-19 pandemic, many California tenants struggled to pay rent in an increasingly expensive and hostile housing market. In December 2020, 1.1 million California households were behind on rent, owing an estimated $7.3 Billion in arrears.[7]

The high price of rent is not the only problem when analyzing housing affordability and instability for renters, other costs such as utilities, access to transportation, rental application fees, security deposits, etc. all contribute to unaffordable costs of housing. Approximately 17 million Californians are renters, and 1 in 4 are considered severely housing cost burdened, paying over half of their income on housing prior to the pandemic — Black (59%) and Latinx (57%) households are the most housing cost burdened.

Since BIPOC communities are forced to pay more of their income towards housing costs, their quality of life is deteriorated. Often, our communities are forced to live in substandard conditions, which impacts health and job opportunities. Many people of color live in conditions where they are exposed to mold, lead, pests, and lack basic necessities like heat and running water, resulting in illness and death. Families are forced to pick between paying rent or going to the doctor for basic health needs, which is especially important during a global health crisis. Due to the high cost of housing, some families are forced into overcrowding, which can lead to an increased exposure to infectious diseases. Our communities are forced to deal with a trifecta of crises all highlighted by the pandemic and rooted in racism.

Even though many tenants are housing cost burdened, federal, state and local governments have dramatically cut spending on publicly funded affordable housing. While public housing has a history of racial exclusion and criminalization, it is a critical safety net for people of color with low-incomes because it provides the opportunity for families to pay lower housing costs while maintaining safe and stable housing. Since the 1970s, funding for public or subsidized housing has drastically declined and policy makers have failed to restore it.[8]  Today, California has fewer than 300,000 units of public housing and about 219 public housing projects. It’s no coincidence that there is a lack of funding for public and subsided housing considering that people of color are often those who reside in them.

However, public housing is not without its own history of racism. The War on Drugs is famously known for the criminalization of Black and Latinx communities, and it also had a secondary effect of influencing public housing policies. Beginning with the Anti-Drug Abuse Act of 1988, which sought to terminate the “reign of terror “of criminal activity in public housing communities, HUD authorized grants for public housing authorities to actively investigate and eliminate drug crimes in public housing authorities.[9] A consequence was over-policing, deliberate harassment, and targeting of people of color in public housing communities.

The Cranston-Gonzales Act of 1990 expanded the definition of eviction to “include any criminal activity that threatens the health, safety, or right to peaceful enjoyment”.[10] Public housing authorities were also granted the authority and discretion to terminate tenancy if a family member or guest of the tenant was engaging in drug-related criminal activity, regardless of if the family member or guest was under the tenant’s control.[11]

Now, nuisance ordinances are used to further target communities of color.  Citations of minor violations like excessive noise, parking multiple cars in the parking lot, or having items on a patio are used to harass communities of color.  Since those evictions are based on something other than non-payment of rent, tenants are still being evicted during a pandemic because renter protections do not apply to them.

In a broader sense, evictions further compound racial segregation in housing. Evictions systemically target people of color — in San Francisco, 24% of Latinx households and 21% of Black households were threatened with eviction from 2013-2018, compared to only 12% of white households.[12]

In courts across California, you can see the racial disparities. As a former tenants’ attorney in Los Angeles, the majority of my clients who were evicted were Black women and Latinx families, and the landlords were white. This is particularity atrocious considering that most tenants are unrepresented.  Many are left at the mercy of unjust renter protections, an inaccessible and confusing court system, and potential homelessness.

Insufficient legal protections for renters, plus a lack of financial support from the government, plus the preexisting affordable housing crisis and looming economic recession may lead to even more devastating effects on BIPOC renters for generations to come. Lack of financial support and government intervention could also lead to an increased rate of eviction, particularly for BIPOC renters already experiencing cost burdens. The combination of increased rent burdens on top of already high rent will lead to inevitable displacement and homelessness among BIPOC renters.

Despite the history, we have a chance to change our future. To create a more equitable housing system and heal from the past, we must work together to strengthen our housing policies for communities of color, and actively fight against racist and discriminatory policies. As we’ve seen with shelter-in-place orders, housing is literally a matter of life or death. Governments need to ensure that all people have access to safe, stable, and affordable housing.

Second, the pandemic has shown that evictions lead to death, so we must expand renter protections and rent forgiveness, and end discriminatory housing policies. Finally, the voices of communities of color must be central in creating solutions to affordable housing. We need to place decision making power back into communities to assist in planning, administering and creating housing policies that honor and stabilize our communities.

We can use momentum from the unprecedented nature of the COVID pandemic to fix our broken housing policies, the question is, will we?

________________________________________________________________________________________________

[1] Richard Rothstein, The Color of the Law A Forgotten History of How Our Government Segregated America (2018).

[2] Id.

[3] Id.

[4] Id.

[5] Sophia Weeden, Black and Hispanic Renters Face the Greatest Threat of Eviction in Pandemic, (2021), https://www.jchs.harvard.edu/blog/black-and-hispanic-renters-face-greatest-threat-eviction-pandemic

[6] Id.

[7] National Equity Atlas (2021), The Coming Wave of COVID-19 Evictions: A Growing Crisis for Families in California, https://nationalequityatlas.org/research/analyses/COVID-19-evictions-california

[8] Amee Chew, Chione Lucina Munoz Flegal, Facing Hisotry, Uprooting Inequality: A Path to Housing Justice in California, (2020) https://www.policylink.org/sites/default/files/pl_report_calif-housing_101420a.pdf

[9] Anti-Drug Abuse Act of 1988, Pub. L. 100-690, 102 Stat. 4181 Ibid. § 5122 (1988). 42 U.S.C. §§ 1190-03 (2012)

[10] Sarah Clinton, Evicting the Innocent: Can the Innocent Tenant Defense Survive a Rucker Preemption Challenge?, 85 B. U. L. Rev. 293, 297 (2005)

[11] See Pub. L. No. 101-625, §. 503, 104 Stat. 4079, 4184-85 (1990); See e.g. Hous. Auth. of Joilet v. Chapman, 780 N.E. 2d. 1106, 1108 (Ill App. Ct. 2002) (holding that public housing residents can be terminated for the criminal conduct of her guest regardless of whether the tenant had control of the guest); See also, Bennington Hous. Auth. v. Bush, 933 A.2d 207, 212-214 (Vt. 2007) (finding that a housing authority can evict an entire family for the misdeeds of one family member).

[12] San Francisco Planning Department, San Francisco Housing Needs and Trends Report, (2018),  https://default.sfplanning.org/publications_reports/Housing-Needs-and-Trends-Report-2018.pdf

The Fight for Fair Traffic Laws Continues in California, With Positive New Developments  

Since 2016, Western Center has been fighting to end driver’s license suspensions for people who can’t afford to pay California’s high traffic fines, or don’t have the ability or means to go to court to resolve their ticket. In a state like California, where driving is often the only option for getting to work, taking kids to school, and shopping or visiting the doctor, license suspensions have a particularly negative impact on people already experiencing poverty. Suspensions for failing to pay or appear in court for a ticket also exacerbate racial inequities, because Black and Latinx drivers are more likely to be pulled over and as a result are disproportionately impacted by license suspensions.

These types of suspensions have very little to do with keeping roads safe — state laws provide other ways to suspend driver’s licenses for reckless and dangerous driving. Failure-to-pay (FTP) and failure-to-appear (FTA) suspensions are about debt collection — coercing drivers to pay their tickets. But for Californians who can’t afford their tickets, suspensions have a perverse effect, making it harder to pay and care for their families, often leading to further fines and mounting debt, and the risk of criminal prosecution and having their vehicle impounded.

Fortunately, since 2016 we’ve made inroads to limit these non-safety related suspensions; failure-to-pay suspensions were outlawed in California in 2017, and failure-to-appear suspensions were limited by a Court of Appeal decision in June 2020.  But there is still work to do.  Most counties still use a person’s failure-to-appear in court — which is often tied to a person’s financial situation — to suspend licenses.

The California Vehicle Code allows traffic courts to send a notice to the DMV when a driver does not appear in court or pay their traffic fine by the ticket’s deadline. In turn, the DMV is required to suspend the driver’s license after one FTA notice (in some cases two, depending on the underlying violation). FTA license suspensions often result from a driver’s inability to pay their ticket by the payment deadline, or to get to court by the deadline because of transportation problems or work conflicts. See the Driving Toward Justice report for more details.

Unfortunately, some courts misuse FTA suspensions by refusing to release an FTA license suspension until a driver pays their citation in full. Other courts only allow “one-way” due process by taking advantage of FTA suspensions, but only allowing a driver to appear to plead guilty in order to lift the suspension. The harm caused by FTA suspensions is even more severe, because counties have varying and unpublished practices that make it difficult for low-income drivers to navigate and resolve their tickets, and because counties have yet to fully embrace a 2017 court rule that requires them to consider a driver’s financial circumstances when setting the fine owed.

Western Center and advocates around the state continue to fight for fair traffic laws. We regularly hear from drivers about the impact these suspensions have on their lives, including lost employment opportunities or spiraling debt that leads to a misdemeanor charge for driving on a suspended license. We encourage drivers to speak up about the real life effects of California’s failure-to-appear suspensions and share their thoughts for how the system should be reformed to meet the needs of all Californians. If you have a story you would like to share, please send me an email. Here are a few recent developments:

Issues in Marin County

In 2017, Governor Brown eliminated suspensions based on a driver’s failure to pay their ticket, but Marin County traffic court and others continued to use failure-to-appear suspensions as a collection tool in a broader way than what’s permitted by the Vehicle Code. Even after a driver appeared in court on a traffic ticket or plead guilty by filing a plea form, Marin traffic court’s policy was not to release a failure-to-appear suspension until the ticket was paid in full, which is contrary to what the vehicle code allows, and undermines the Governor/Legislature’s elimination of failure-to-pay suspensions. Essentially, Marin was using failure-to-appears as prohibited failure-to-pays to coerce drivers to pay tickets.

In February of this year, Western Center and Bay Area Legal Aid sent a letter to the Marin County Superior Court requesting it stop the practice; Marin is now agreeing to do so, though, it is unclear how the process will unfold and how they will make sure the public and impacted drivers know about the change in policy. Marin is also agreeing to review its practices to make sure it is not misusing the FTA suspension tool by asking the DMV to suspend a license after a single FTA when the Vehicle Code requires two.

This example in Marin is emblematic of problems we see statewide: traffic court procedures vary significantly county by county, and even courthouse by courthouse within a county. Variations in policies and practices are not clearly communicated to the public through the traffic court website or forms, and the lack of transparency results in traffic court practices that do not comply with the Vehicle Code or recent changes to California Rules of Court that allow drivers to ask for a reduction in their traffic fines based on their financial circumstances. The drivers that are harmed by these discrepancies are overwhelmingly low-income drivers who can’t just write a check or use a credit card when they get a ticket. We hope Marin’s traffic court will take a different approach by adopting a written policy that will be available to the public online and made clear on relevant traffic forms so drivers with low-incomes can resolve their tickets and avoid unjust license suspensions.

Other traffic courts could and should benefit from Marin’s example, using it to check their own processes to ensure compliance with the Vehicle Code. Aside from the issues Marin has agreed to address, advocates see problems in traffic courts throughout the state where drivers are not able to appear in court after the appearance date has passed on an unadjudicated ticket to clear an FTA suspension, unless they agree to plead guilty. This one-way due process is clearly illegal: either the court has already found the person guilty, in which case there should not be a failure to appear hold/suspension, or the driver should be able to appear in court to contest the ticket. Advocates also see enormous variation and questionable practice when drivers ask the court to reduce their traffic fines based on their financial circumstance. In many courts, Californians with incomes low enough to qualify them for CalFresh or Medi-Cal have their requests to reduce traffic fines rejected, despite a Judicial Council pilot project that recommends drivers receiving public benefits have their traffic fines reduced by 50%.

Hernandez v. California Department of Motor Vehicles

Hernandez v. CA DMV was filed in 2016 and challenged driver’s license suspensions when a driver did not pay their ticket or appear in court. The failure-to-pay issues were resolved in 2018 by a combination of legislative change and litigation — drivers no longer have their license suspended for unpaid traffic tickets in California. This summer, Western Center and our partners at Bay Area Legal Aid, Lawyers’ Committee for Civil Rights SF, ACLU of Northern California, USC Gould School of Law Access to Justice Practicum, and Pillsbury Winthrop Shaw Pittman LLP won a victory in the Court of Appeal on the remaining issue regarding what type of notice a traffic court has to send the DMV to suspend a driver’s license for a failure to appear. The court sided with Western Center and our partners, finding that the traffic court has to send a notice that alleges the failure-to-appear was willful. This result will still require monitoring, since the determination of when a failure-to-appear is  “willful” may vary by judge or county. There is also concern about whether courts have adequate procedures to consider information that would suggest a failure-to-appear was not willful, including communications with drivers that they were unable to appear or pay their ticket by the deadline.

Last month, we mediated a final resolution in this case. The DMV agreed to a stipulated judgment as to how the Court of Appeal decision will be implemented, which means thousands of drivers will have their licenses reinstated, and that going forward, the DMV will not suspend a license unless the traffic court sends the required notice that the failure to appear was willful. The next step will be advocacy to make sure traffic courts have fair procedures to determine whether such a notice should be sent when a driver fails to appear because of financial, work, family or other excusable reasons.

Dismissed suspended license charges

The Court of Appeal’s June 2020 decision in Hernandez has opened the conversation about the policy wisdom of misdemeanor charges for driving on a suspended license, particularly when the underlying suspension is based on a failure-to-appear that stemmed from poverty. In the wake of the Hernandez decision, courts have dismissed charges for driving on a suspended license – some across the board and some just in cases where the suspension is based on a faulty notice, as we argued in the Court of Appeal. The next steps are to continue to challenge these suspensions (and the resultant misdemeanor charges), including litigation/administrative advocacy for how traffic courts use failure to appears, and pushing to reduce the penalties for driving on a suspended license where the suspension is based on an FTA.

 

Victory for COVID Tenant Protections in Los Angeles

Last Friday, Judge Dean Pregerson denied the Apartment Association of Greater Los Angeles’ motion for preliminary injunction to stop enforcement of the City of Los Angeles’ COVID-related tenant protections.

The Apartment Association filed a lawsuit in federal court to challenge, on constitutional grounds, the city’s ability to enact COVID-related tenant protections: one barring evictions for nonpayment of rent or certain lease violations for COVID-related reasons during the local emergency period, which is ongoing, and one barring rent increases for rent control units during the local emergency period. 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 sought to intervene in the lawsuit to help defend the ordinances. Since the lawsuit was filed, California enacted AB 3088, which overlaps significantly with the eviction protection ordinance. While AB 3088 goes further to protect tenants in some ways, the city’s ordinance goes further in others.

In September, the Apartment Association filed a motion for preliminary injunction, asking the court to suspend the enforcement of the two ordinances while the lawsuit is pending. It argued that the Association was likely to succeed on the merits of the case, and that landlords would suffer irreparable harm if the ordinances stayed in place. The Association relied on its claim that the ordinances violate the US Constitution’s Contract Clause, which forbids the state (or local governments) from making laws that substantially impair contracts without a reasonable basis for making those laws, and a claim that the ordinances violated landlords’ due process rights under the Fourteenth Amendment.

The court denied the Association’s motion, stating that “even though the court is persuaded that [the Apartment Association] will be able to show that the Moratorium substantially impairs landlords’ contract rights, [the Apartment Association] is not likely to succeed on its Contract Clause claim because any such impairment appears, at this stage, to be eminently reasonable under the extraordinary circumstances.” The court also disposed of the Association’s Due Process claim in a footnote: “Substantive due process provides no basis for overturning validly enacted state statutes unless they are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.”

The court, noting that the Apartment Association had basically conceded that the state law is constitutional, further stated, “[The Apartment Association] has failed to show that the preliminary injunction it seeks will prevent the harms it alleges. The Moratorium represents but one layer of protection Los Angeles renters currently enjoy. California state authorities have not remained idle in the face of the COVID crisis. In late August, the state legislature passed Assembly Bill 3088, the COVID-19 Tenant Rights Act.”

While the court upheld the City of LA’s ordinance, and found that landlord interests must yield to the “vital interests of the public as a whole,” in his ruling, Judge Pregerson urged the federal government to act in order to avoid the burgeoning “war” between landlords and tenants, brought on by the extraordinary circumstances of the pandemic:

This Court will defer to the judgment of local authorities, who have the unenviable task of weighing all of the relevant considerations and choosing the least of all possible evils. It bears repeating, however, that the COVID-19 crisis is national in scope, and demands a national response.

Landlords and tenants alike are victims of the virus, both literally and economically. Tenants should not have to live in fear of eviction because of a calamity that was not of their making. Landlords should not have to live in fear of losing their hard-earned investments in our community because of a calamity that was not of their making. Our citizens should not have to fight each other to avoid economic and personal ruin.

Courts are an imperfect tool to resolve such conflicts. So too are ordinances and statutes that shift economic burdens from one group to another. The court respectfully implores our lawmakers to treat this calamity with the attention it deserves. It is, but for the shooting, a war in every real sense. Hundreds of thousands of tenants pitted against tens of thousands of landlords – that is the tragedy that brings us here. It is the court’s reverent hope, expressed with great respect for the magnitude of the task at hand, that our leaders, and not the courts, lead us to a speedy and fair solution.

This is an important win in the fight to keep not only Los Angeles renters housed, but also renters throughout California, as it affirms the importance of people staying in their homes in the midst of the ongoing pandemic, and what looks like another wave of shutdowns. We join Judge Pregerson in the hope that we will see more substantial solutions from the federal government in the coming weeks and months.

For more about the case, ACCE and SAJE’s joint press release can be read here.