RTCNYC Coalition Draft Testimony for OCJ Hearing on 11/15

November 15, 2018

The Right to Counsel NYC Coalition, which led the campaign for a right to counsel in eviction cases in NYC, is proud of the City’s new groundbreaking legislation and applauds the City Council and Mayor for adopting the legislation and the Administration for moving forward enthusiastically to implement the law. The right to counsel will make a huge difference in the lives of tenants. It has the potential to transform Housing Court from a one-sided forum that routinely rubber-stamps agreements made between litigants with vastly unequal bargaining power, to a more balanced forum with the capacity to dispense justice and to have a broad impact on housing rights. It will give low-income tenants the comfort of knowing that if they assert their housing rights and end up in court, someone with knowledge of the law and the ability to litigate will have their back. It will provide community organizations and tenant associations with a powerful tool to preserve communities and protect and advance tenants’ rights. Already, we see its potential and its impact: evictions are down, filings are down and shelter entries from evictions are down.

This victory for civil and human rights in NYC is having an impact across the United States. Other cities and states are moving toward a right to counsel in eviction cases. San Francisco recently adopted legislation that is even more broad than NYC’s, guaranteeing counsel in eviction cases for all tenants regardless of income. Having eyes in other jurisdictions looking at how NYC implements its law and looking to NYC as a model is all the more reason why we have to get this right.

We recognize that the implementation of the right to counsel law is a massive, multifaceted undertaking, and we appreciate the city’s efforts to maintain an ongoing dialogue with the Coalition and other key stakeholders. Implementing the new law in a way that provides the most effective advocacy, rooted in community organizing and focused on preserving low-income housing and stable communities, is in all of our interests.

We offer the following recommendations in the spirit of collaboration and commitment to fulfill the full promise of the law.

RECOMMENDATIONS FOR IMPROVEMENT:

Tenant Awareness, Outreach and Education

We are deeply concerned that not enough tenants who have the right know they have it, and that many who do have it are too intimidated to use it.

The City estimates that lawyers will serve roughly 13,000 families in the first year. But that number is based on who makes it to court now. With RTC, that will change. Every tenant in those zip codes will have a right to know about RTC. In the three zip codes in the Bronx alone, there are a total of 87,000 households, of which about 75% are rent stabilized. In order for RTC to be truly universal, everyone needs to know about it, understand it, and use it as a tool to also address other housing issues, like inadequate services and landlord harassment. Neighborhood based groups who have a history of tenant organizing and community service, are trusted community partners and therefore are best positioned to do the outreach and education work that is critical to the success of RTC. However, instead of partnering with and supporting these groups to do this work, the neighborhood based organizing groups have taken up the work of doing this.

There are thousands of tenants who have the right to counsel that don’t know about it and many that continue to not show up to court, even though they would otherwise get an attorney, because the fear and intimidation of going to court. Given the larger political climate of ICE being in other courts---it makes absolute sense that many tenants choose to move out rather than fight their case in court.

Because the city has not yet created mechanisms for tenants to know about this new right, the RTCNYC Coalition has created FAQs, tenants rights flyers and a new website, www.evictionfreenyc.org that the city should share, advertise and use, until better systems and materials are created.

RECOMMENDATIONS

In order to increase tenant awareness of this new right and encourage tenants to use it, the city should:

  • Adopt the language of a right.
  • Fund Neighborhood based community organizing groups to do outreach, education and respond to landlord intimidation and harassment.
  • Monitor and develop a response to landlord attorneys who pressure tenants in the courts who are eligible for RTC not to use their right. The fact that the city and the state allows landlord attorneys to talk to tenants in the hallways before the courtrooms open, while the judges make their announcements, and all throughout the morning violates tenants right and is simply unacceptable. The city needs to monitor this closely in the Bronx, sanction landlord attorneys where necessary and develop a solution to stop this from happening.
  • Create a system to respond to landlord harassment outside of the court.
  • Engage in a large public awareness campaign (as was committed to the RTCNYC Coalition in a meeting on 10/5/17 but have not been implemented) including but not limited to:
    • Paid subway & other media ads like for SCRIE/DRIE;
    • Tele-Town Halls;
    • Robo calls by zip codes;
    • Mailers w/co-branding with organizing groups if possible (including mailers targeting SCRIE/DRIE recipients)
  • Create a hotline that tenants can call to get information, referrals and resources about right to counsel. Ideally tenants would be able to schedule appointments with legal services providers this way. 311 is not working. Over the period of a few months, we conducted a series of calls to 311 to test how they responded to calls about evictions and the results were abysmal.
  • Create neighborhood based intake processes so that tenants can find an attorney, before they ever go to court. The fact that tenants don’t talk to an attorney or often even know about RTC until their first court date is hugely problematic. Neighborhood based clinics would mean that some tenants never have to go to court. It would also greatly increase the number of tenants who claim RTC.
  • The city should create web-based portal should be created for tenants to determine their eligibility for right to counsel and identify legal service providers in their neighborhood. This portal should be modeled after www.evictionfreenyc.org and until the city creates its own portal, it should refer tenants to this portal.

Increase and strengthen Right to Counsel:

Yet, we have to think to the future. By 2022, all income eligible tenants will have a right to an attorney. What about over income tenants who can’t afford lawyers, what about cases that aren’t in housing court, and how can we expand the legislation to cover the full cost of RTC which goes beyond funding attorneys, to include the costs of education, outreach and organizing? Below is a summary of our recommendations to expand and strengthen RTC.

RECOMMENDATIONS:

  • Increasing the income threshold to 400% of the federal poverty line: Currently, while the majority of tenants in housing court are eligible for the right to counsel under the current 200% threshold, a single New Yorker earning a $15 an hour minimum wage is not. Doubling the income threshold would mean almost everyone who is in housing court now, would be eligible for RTC.
  • Expanding the types of cases covered:
    • While most eviction cases occur in City Housing Courts, hundreds of cases are heard in higher courts or administrative hearings, including:
      • HPD administrative hearings for Mitchell-Lama residents;
      • Supreme Court Ejectment cases; and
      • Housing Development Fund Corporation (HDFC) cases.
    • Covering Appeals Though the current law guarantees tenants get an attorney for the entirety of their cases, it does not cover appeals. With more tenants than ever being represented and winning their cases, landlords are filing more appeals. Without legal representation to defend their victories, tenants will be left alone when the final, most consequential, decision is made.
  • Funding Community Organizing: Connecting tenants to attorneys before they arrive at court by funding community based organizations to conduct outreach and engagement to inform tenants of their right to an attorney Neighborhood based groups with histories of tenant organizing and community service are trusted community partners and therefore are best positioned to do the outreach and education work that is critical to the law’s success. The right is only as effective as tenants’ ability to know and claim their rights.

Court Based Implementation:

Institutionalizing a right to counsel in eviction proceedings requires significant change to many aspects of how eviction proceedings are conducted, including developing the necessary physical infrastructure within each of the city’s Housing Courts. Below is a series of recommendations to take in order to successfully implement right to counsel. As tenants, organizers, advocates and lawyers, we see the problems and pressures confronting NYC tenants on a daily basis, and we bring to the task our specific expertise in working closely with NYC tenants facing eviction, including extensive experience in eviction cases in the City’s housing courts.

GENERAL RECOMMENDATIONS FOR ALL COURTHOUSES:

  • All intake areas should include sufficient private intake spaces that are confidential and ADA accessible.
  • Right to counsel intake spaces should also include: Electrical outlets; Free copy machines with scanning and printing capability; Good Wi-Fi with a secure connection; Court provided computers; Secure, lockable space for each legal services organization to be able to store a certain amount of supplies; A waiting area with sufficient seating.
  • All court rooms should have sufficient seating for the number of litigants on the calendar in a given session and also ample space for case conferencing and waiting in line to check in.
  • Courthouses should have ample seating in the hallways and sufficient room for litigants to move through the court space.
  • There should be private attorney-client conferencing spaces so that attorney-client conversations can be confidential.
  • There must be sufficient elevators for the volume of litigants.
  • The security line area should be sufficient for the volume of litigants, such that people do not have to wait in line outside of the courthouse.
  • HRA should have office space near the relevant court rooms and near the legal service organizations intake space.
  • Clear signage about Right to Counsel, and directing tenants to resources, should be installed throughout the courthouses.
  • All courthouses that have a no food policy should revoke it.
  • The court should provide free childcare facilities for tenants at each housing court location
  • With the aim of informing as many tenants as possible, information about the right to counsel should be communicated in as many ways as possible, with full accessibility provided for Limited English Proficient tenants and tenants who are deaf and/or vision-impaired, including but not limited to: all court staff making announcements and directing people to tenant attorneys (especially judges, court clerks and court attorneys), adequate signage throughout the courts, more and better information on all court documents including the postcards, notice of petitions and hearing notices, etc.
  • Improve Language Justice in the Courts: Language access is a racial justice issue and a right to counsel will only provide meaningful access to justice if it is made fully accessible to Limited English Proficient (LEP) tenants. The courts should ensure all RTC materials (documents and signs) are in the most 12 most common NYC Languages, use language line, conduct regular language justice training for all court personnel, regularly review and evaluate the interpretation services they use, adequately advertise interpretation services and ensure interpretation is available in all court interactions (not just in the courtroom).
  • The right to counsel must be fully accessible to tenants with disabilities and homebound tenants. Therefore: All courtrooms should have space to accommodate tenants in wheelchairs and also sufficient seating for tenants with disabilities; All publicity, signage, and other information about right to counsel should be made accessible to vision and hearing impaired tenants; Tenants with disabilities should not have to wait in security lines; courts should contact ADA liaisons for tenants; Marshal shall contact APS if they arrive and find a homebound person.

ADDITIONAL RECOMMENDATIONS:
 

  • The city should hire a Central Coordinator would be equipped and trained to connect tenants with legal service providers who are most convenient to the tenant and who have capacity to represent them.