by Phil Ensler, Policy Counsel 

Victims of domestic violence, tenants facing eviction, and veterans seeking their benefits are among the thousands of low-income Alabamians who receive free legal assistance from civil legal aid attorneys because they cannot afford to hire their own attorneys.

Despite the essential need for these services, Alabama is one of only two states that does not fund civil legal aid. Instead, legal aid providers in Alabama rely on the federal government, non-profit organizations, and sometimes municipalities for funding.

This  leaves thousands of Alabama’s most vulnerable residents without access to lawyers. It is also a bad business decision, with far-reaching consequences for our local economies.

According to a recent study published by the Alabama Civil Justice Foundation, for every $1 invested in civil legal services, Alabama communities received almost $12 of immediate and long-term economic benefits. That is an extraordinary social return on investment of 1,195% that amounts to a value of over $200 million gained from civil legal services.

Despite these benefits, civil legal aid in Alabama is grossly underfunded. Alabama is the lowest funded state for civil legal aid at a rate of $9.85 per eligible person. This amounts to half of the national average of $20 per person, and is a stark contrast to the highest funded state, which is 11 times greater than Alabama. In 2016, $8.9 million was spent in Alabama on civil legal aid. In order to meet the national average, Alabama would need to increase its spending to $18 million, and to fully meet the needs of all eligible Alabamians it would need to spend $45.5 million. By fully funding civil legal aid, Alabama would not merely be spending money to ensure that all Alabamians have access to justice, but also making a wise investment in our economy.

Funding civil legal services yields such a high return on investment because legal aid providers represent low-income Alabamians in a range of areas that impact the economy, including housing, employment, family issues, public benefits, consumer protection, and community issues.

These services can help a family keep a roof over their heads and avoid homelessness. For others, it means restructuring crippling debt to avoid financial ruin.  For some elderly clients, this help means a recovery of social security payments or other federal benefits that had been mistakenly suspended. For some veterans, it secures much-needed and hard-earned benefits. For others, these services means better, safer custody arrangements for children or even a long-awaited adoption.  

All of these outcomes strengthen our local economies, helping people remain in their homes, protect their wages, and resolve disputes that allow them to better support themselves and contribute positively to their communities. Alabama would be wise to heed the findings of the Alabama Civil Justice Foundation study and start investing in civil legal services.

To learn more about our work to ensure access to justice for all Alabamians, check out our website.

by Phillip Ensler, Policy Counsel

This past legislative session, Alabama Appleseed worked to improve on access to justice for low-income individuals in our state by advocating for two important pieces of legislation.

While some legislators in both the House and Senate supported these bills, the full state legislature was not given the opportunity to vote on these necessary changes.  

We advocated for SB 36, which would have ensured that backlogs in the fee-waiver system couldn’t prevent low-income Alabamians from being heard in civil court.

Filing fees for civil lawsuits can run into the hundreds of dollars, a prohibitive cost for low-income Alabamians struggling to pay for rent, groceries, utilities, and other necessities. Individuals who cannot afford these fees have a right to apply to have them waived, but applications can sit for months without any action.

This is problematic. Many civil causes are constrained by statutes of limitations, often running a year or two, which mean that individuals who wish to file lawsuits must do so by a certain deadline. But backlogs in the fee-waiver system mean judges may not decide on waiver applications until after the relevant statute of limitations has ended. As a result, low-income individuals have been denied the ability to have their case heard merely because the court failed to review their waiver application before the deadline.

This bill would have fixed a real-world problem. Coretta Arrington’s six-year-old son drowned after he gained unsupervised access to the swimming pool in their apartment complex. Ms. Arrington alleged that the property owner was at fault for her son’s death because they failed to have lifeguards and other safety measures in the pool area. But, she was unable to hold the property owner accountable because she could not afford the filing fees required to bring the case.  She sought a fee waiver, but by the time the court got around to approving her application, the statute of limitations period in which she would have legally needed to bring the case had expired. As a result, she was denied the opportunity to seek justice in the courts for the death of her child.

SB36 would have ensured that individuals like Ms. Arrington would not be denied access to the courts simply because they cannot afford a court filing fee. Under the proposed law, one’s lawsuit would be considered filed with the court on the same day as their fee-waiver application. This would prevent the statute of limitations from expiring while the judge considers the application. This fix would better ensure that all Alabamians have access to the courts, regardless of their wealth.

We also advocated for HB 379, which would have created a waiver process for the fee caps on how much appointed lawyers can be paid by the state for their representation of indigent criminal defendants.

Under current law, the fee caps are imposed regardless of the complexity of the case or how much time and effort the attorney puts into their client’s defense.

Fair justice requires that all people—regardless of how much money they have—are effectively represented in court. The existing fee caps discourage some of the most competent and effective lawyers in the state from taking on appointed work, and create a disincentive for appointed attorneys to devote the necessary time and resources to their client’s case.

We advocated for HB 379 because it would have created a process in which appointed attorneys could be paid up to double the cap in situations that require the devotion of extra time and resources into representing their client. Creating this type of waiver system will enable attorneys to provide their clients with the vigorous defense they deserve without forcing those attorneys to work for free, and could motivate attorneys who have avoided appointed work for financial reasons to represent individuals who cannot afford counsel. As a result, indigent defendants–who face the prospect of having the government take away their liberty–would enter the courtroom on a more even playing field.

In the coming months, Alabama Appleseed will publish reports that will educate the public and legislators about the importance of ensuring that all Alabamians, regardless of income, enjoy equal access to justice.

We will publish a report on the importance of civil legal aid services for individuals who cannot afford an attorney, provide attorneys with manuals to assist them in taking on such cases, and engage in court-watching and documentation research to evaluate the quality of representation afforded to indigent defendants. And when next session rolls around, we will urge lawmakers to ensure access to justice for all, making our state a fairer, safer, and more equitable place.

By Phillip Ensler, Policy Counsel

Low-income tenants throughout Alabama will enjoy greater access to justice due to the Alabama Court of Civil Appeal’s ruling last week in Morrow v. Pake.

In a decision that will affect thousands of tenants, the court reversed the Tuscaloosa Circuit Court, and ruled that tenants who are evicted have a right under state law to later file a lawsuit for a landlord’s illegal actions while they were a resident of the property.

The tenant in the case, Bridgette Morrow, was evicted after the landlord failed to repair the unsafe living conditions she repeatedly reported about the house she rented. The law firm Winston & Straw, LLP and the Civil Legal Clinic at the University of Alabama School of Law recognized the injustice faced by Ms. Morrow endured and represented her for free to ensure she received quality legal representation. They also took on this case to protect the rights of individuals like Ms. Morrow throughout Alabama.

Alabama Appleseed, along with Legal Services Alabama (LSA) filed an amici curiae brief in support of Ms. Morrow and individuals like her in our state. We felt compelled to speak up for the rights of tenants like Ms. Morrow, who too often face eviction proceedings without any legal representation. 

The main question in the case was whether a tenant who is facing eviction is legally required to raise any claims he or she has against the landlord during the eviction proceedings, during which they are likely distracted by the prospect of imminent homelessness, or if they can bring those claims at a later date.

Preserving the right to bring a claim at a later date is essential to ensuring tenants are able to receive justice in situations where a landlord subjected them to substandard living conditions and failed to provide basic services as prescribed in the terms of the lease.

The court unequivocally agreed with Ms. Morrow’s argument that under the Alabama Uniform Residential Landlord and Tenant Act (URLTA) a tenant’s right to challenge their landlord’s illegal actions does not end with their eviction.  

The court underscored the point made in the appeal and in Alabama Appleseed and LSA’s brief that if the Alabama Legislature wanted to require such claims, they would have done so in the URLTA.

The court also agreed with our analysis that the purpose of an eviction proceeding is to focus on the issue of possession of the property, and not necessarily address the conditions and other wrongs the tenant encountered while living there.

As a result of upholding this right, tenants will have more time to find a lawyer and challenge the illegal acts of their landlord, instead of being forced to do so under the stressful and time-constrained conditions of an eviction proceedings.

While Alabama Appleseed is pleased with the court’s ruling, there is still much work to be done to create a level playing field our courtrooms. A vast majority of tenants enter the courtroom without legal representation, while the vast majority of landlords have ready access to quality counsel. As a result, the deck is already stacked against low-income tenants.

To create a more fair justice system, the State of Alabama must provide more and adequate resources for civil legal aid programs—including the Volunteers Lawyers Programs, Legal Services Alabama, and the other clinics and service providers—who provide low-income Alabamians, including many tenants, with vital access to legal representation. Only with such access to counsel will tenants and other low-income Alabamians be more likely to receive access to fair justice in the courts.

For many low-income tenants who live in substandard living conditions or face eviction, access to justice is often elusive.

This often occurs because landlords and tenants are not entering the courtroom on a level playing field. Before their case is even considered, the deck is stacked against low-income tenants.

In fact, while 90 percent of landlords throughout the country are represented by attorneys, an overwhelming 90 percent of tenants go through their case without any legal representation.

In order to ensure greater access to justice for low-income tenants in our state, Alabama Appleseed, along with Legal Services Alabama, recently filed an amici curiae brief in support of tenants’ rights in a case before the Alabama Court of Civil Appeals. The case is Morrow v. Pake. The University of Alabama School of Law’s Civil Law Clinic represented the tenant pro bono in the trial court, and Paula W. Hinton and William M. Logan from Winston & Strawn LLP are assisting pro bono with the appeal.

The facts of the case are sadly all-too-familiar for low-income families in Alabama.

In Tuscaloosa, a mother and her children moved into a single-family home. Under the lease, the landlord tried to relieve himself of responsibility for basic needs in the home such as ensuring working electrical and plumbing systems. Soon after moving in, the living conditions became dangerous, including defective smoke detectors and faulty and failing electrical wiring. The landlord refused to address these issues. Desperate to keep her family safe, the tenant attempted to make some improvements on her own. After more attempts to get the landlord to make the necessary repairs, the landlord moved to evict the tenant. Instead of fighting the landlord in court, the tenant moved her family into a new home.

Once the tenant settled into her new residence, she filed a complaint seeking to hold the landlord accountable for his violations of the Alabama Uniform Residential Landlord and Tenant Act (URLTA) (which includes a right to decent housing); his breaches of the rental agreement; and his unjust enrichment from the tenant’s improvements to the property.

The lower court ruled in favor of the landlord, who argued that the tenant was legally obligated to raise her claims during the landlord’s eviction proceeding, and therefore was barred from later raising these claims.

Yet the URLTA clearly does not require a tenant to bring her claims during the eviction proceeding. In fact, the law says the tenant “may” bring the claims during the eviction process – which means that the tenant then may also raise them at a later date.

Moreover, the purpose of the Act is to streamline the eviction process and to keep the focus on resolving the possession issue – and not necessarily other claims either party may have against one another. This is evident by the requirement that the tenant respond to the eviction action within 7 days. It is unfathomable to expect a tenant—who is on the verge of being uprooted from their home—to also obtain counsel and file a detailed counterclaim in such a period of immediate hardship.

In order to ensure equal access to justice and basic fairness for all tenants—regardless of their financial status—the Court of Appeals must uphold the right of tenants to bring counterclaims against landlords in later proceedings.

In addition, the State must provide more and adequate resources for civil legal aid programs throughout the state—including the Volunteers Lawyers Programs, Legal Services Alabama, and the other clinics and service providers—who provide low-income Alabamians, including tenants, with vital access to legal representation.

Especially as we enter the holiday season, it is essential that we protect the most vulnerable among us and uphold the rights of all Alabamians so they can enjoy equal access to justice.

The United States Constitution is clear. In criminal cases, the accused have a right to a lawyer. Our Constitution affords this protection in order to ensure that individuals are not wrongfully or unfairly deprived of their liberty.

Yet there is question as to whether this fundamental 6th Amendment right is being upheld in Alabama.

Throughout the South, states and districts are being sued for their failure to comply with the Constitution.

In Louisiana, indigent defendants have asserted that their constitutional right to counsel is being denied, which has led to a legal battle over the state’s failure to provide adequate funding and resources for the state public defender service.

Similarly, indigent defendants in South Carolina recently filed a class action lawsuit against certain jurisdictions for failure to provide legal representation.

Horrifically, one plaintiff in the South Carolina case, a homeless man, has been arrested or given a citation 270 times for the same offense, yet not once has he had an attorney represent him in court proceedings.

These cases demonstrate why we need to know if, how, and to what extent Alabama is ensuring access to counsel for indigent defendants.

Appleseed previously conducted a study of the indigent defense services in four Alabama judicial circuits from 2001-2002. This report has been widely cited for the insight it provided on the practices of indigent defense counsel and the outcomes of those cases.

But, there have been no such studies conducted since then, and there is no comprehensive report on indigent representation throughout Alabama.

In order to understand how and whether the right to counsel is being protected today, Appleseed will soon begin documenting and assessing the quality of indigent defense services in a wide range of counties.

Appleseed’s staff has been traveling to all corners of the state to engage with those in the community who are charged with the duty of ensuring that indigent defendants receive legal representation. We have been meeting with these stakeholders, including public defenders, criminal defense attorneys, judges, and other key Alabamians to hear their views on how the system is currently functioning and what aspects of indigent defense they believe we most need to research.

Alabamians care deeply about protecting the Constitution. This is why Appleseed will conduct this study, and then use the findings to collaborate with partners to ensure that all indigent defendants in the state have access to adequately resourced, quality legal representation.

My name is Phillip Ensler and I am excited to have recently joined Alabama Appleseed as Policy Counsel. In my role, I will provide direction and leadership to advance our policy goals. This includes managing the Access to Justice Campaign to improve access to adequate counsel for indigent clients in criminal and civil cases.

I graduated from the Benjamin N. Cardozo School of Law in New York this past May. Although I am a native New Yorker, coming to Montgomery is like returning home – or as we say down here, Sweet Home Alabama!

My history in Alabama dates back to when I was in college and visited Montgomery, Selma, and Birmingham to see the sacred sites of the Civil Rights Movement. I was humbled and inspired by standing in the very places where Martin Luther King Jr., John Lewis, Rosa Parks, and countless other heroes and foot soldiers had the courage to stand up for a more just and equal Alabama.

Despite the significant progress that has been made, I was also aware that there was still much more to be done. In this spirit, I moved to Montgomery in 2012 to serve as a Teach for America corps member, where I worked to help close the educational achievement gap. My students were just as talented and intelligent as students at any other school, but they were not given the same opportunities to succeed due their racial and socioeconomic backgrounds.

My experience in the classroom motivated me to attend law school in order to gain the skills and knowledge to fight to make the law fairer so everyone in Alabama can achieve their full potential. I was committed to returning to Alabama because it was a community that welcomed me with open arms, and it is where I have met some of the most dedicated and passionate people in my life.

After my second year of law school, I worked as a legal intern at the Southern Poverty Law Center in Montgomery, where I worked on juvenile rights and education issues. And now, I am looking forward to the work Appleseed will do to ensure that more students are receiving the education and opportunities they deserve and do not become just another number in the system of mass incarceration.

We also have much work to do in the area of civil and criminal defense legal services for disadvantaged Alabamians. The words “Equal Justice Under the Law” are engraved on the façade of the United States Supreme Court. Yet in order to fully live up to that democratic principle in Alabama, we must ensure that all citizens have access to adequate lawyers, regardless of their socioeconomic status. Our justice system should not depend on which side has deeper financial pockets.

That is why at Appleseed we will be working with partners throughout the state to increase funding for civil legal services. This will ensure that those who cannot afford to hire a lawyer can continue to have access to legal assistance for vital services such as applying for veterans benefits or seeking to remain in their home in the face of eviction.

On the criminal side, we will similarly work with stakeholders to ensure that indigent criminal defendants receive adequate counsel. The determination of truth and justice in a criminal case should not be predicated on whether a defendant can afford an attorney. At the Innocence Project, where I also did a legal internship, we saw in case after case that defendants were wrongfully convicted and incarcerated for decades because they did not have access to adequate counsel during their cases. In order to prevent such injustices in Alabama, we will examine which methods are most effective in upholding indigent defendants’ Constitutional right to counsel. We will then advocate for these best practices to be implemented state-wide.

Dr. Martin Luther King Jr. once said, “we are determined here in Montgomery to work and fight until justice runs ‘down like water, and righteousness like a mighty stream.’” At Appleseed we are determined to continue that effort for all of Alabama. I am grateful to be a part of such work and I look forward to working with activists, partners, and leaders throughout the state to make it happen.