Blasi, Gary L.

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Urban Law Annual ; Journal of Urban and Contemporary LawVolume 31 Homeless Symposium | CERCLA SymposiumJanuary 1987Litigation on Behalf of the Homeless: SystematicApproachesGary L. BlasiFollow this and additional works at: https://openscholarship.wustl.edu/law_urbanlawPart of the Law CommonsThis Homeless Symposium is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has beenaccepted for inclusion in Urban Law Annual ; Journal of Urban and Contemporary Law by an authorized administrator of Washington University OpenScholarship. For more information, please contact digital@wumail.wustl.edu.Recommended CitationGary L. Blasi, Litigation on Behalf of the Homeless: Systematic Approaches, 31 Wash. U. J. Urb. & Contemp. L. 137 (1987)Available at: https://openscholarship.wustl.edu/law_urbanlaw/vol31/iss1/5LITIGATION ON BEHALF OF THEHOMELESS: SYSTEMATIC APPROACHESGARY L. BLASI*This article will leave to others the discussion of whether Americanshave a "right to shelter" arising under the Constitution. What con-cerns practicing poverty lawyers are not matters of abstract right, butthe daily desperate existence of individual homeless clients and theforces at work in society that lead to homelessness. This is not to saythat the question of a "right to shelter" is not an important issue.American society will eventually answer the question of which the"right to shelter" is but a part: Do people have a right to life simply byreason of their humanity or citizenship? Put another way, shall wepermit people to freeze to death in the winter, to starve, to die from theeffects of preventable disease, merely because they are poor, insane, oraddicted to drugs? In the long run, the ways in which our society re-sponds to that fundamental question will determine far more than theplight of the homeless. It will define our civilization.In the short run, however, both the homeless and their advocatesmust deal with the concrete problems of obtaining shelter. Advocacycan only succeed if based on an objective and empirical understandingof the systems and institutions that place people on the streets and keepthem there. Homelessness as a social phenomenon is clearly related tothe loss of low income housing, drastically increased "structural" un-employment, and the failure of the mental health system. At both thefederal level and the state level a complex array of "social safety net"programs exists. The very existence of these programs would seem-ingly render homelessness impossible. The homelessness of large num-* Special Projects Attorney, Legal Aid Foundation of Los Angeles.Washington University Open Scholarship138 JOURNAL OF URBAN AND CONTEMPORARY LAW [Vol. 31:137bers of people, however, can often be traced directly to one or moreholes in the "social safety net." Governments have intentionally cre-ated some of these "holes" in order to achieve other goals, like control-ling costs. Although the examples used in this article are primarilyfrom Los Angeles, conversations with advocates across the countrysuggest that the processes at work in Los Angeles are nearly universal.Litigation on behalf of the homeless in Los Angeles County has beenconducted by a "Homeless Litigation Team," comprised of lawyersand legal workers from eight public interest law firms' and by an occa-sional private law firm's pro bono contributions.2 In Los AngelesCounty, state law obligates the county to "relieve and support" theindigent and disabled who are not otherwise supported,' an obligationthe county meets by means of a general assistance program known asGeneral Relief. In the early stages of looking at the legal aspects ofhomelessness, a seeming contradiction struck these advocates. Anemergency shelter system existed as part of the General Relief pro-gram. This system ostensibly provided hotel vouchers to any homelessapplicant who needed assistance. While thousands of people lived inthe alleys, streets, and parts of Los Angeles, hundreds of vacant roomsexisted in the county's voucher hotel system. Through interviews withdozens of homeless people in the welfare office, some of the reasons forthe contradiction became obvious. The local welfare bureaucracy hadconstructed two simple but effective barriers to the shelter system thatserved to control the flow of homeless persons into the emergency shel-ter system and, therefore, into the General Relief system itself.The first of these barriers was an arbitrarily stringent documentaryidentification requirement. A homeless person applying for emergencyshelter was required to produce a certified copy of a birth certificate ora drivers license. A fact of life on the streets is that people tend to keeptheir identification with their valuables, and both are frequently lost tothieves. The identification requirements, therefore, kept many peopleon the streets. An intermediate level welfare bureaucrat revealed thatthe requirements varied with the seasons; in the winter when demand1. Legal Aid Foundation of Los Angeles, American Civil Liberties Union Founda-tion, Western Center on Law and Poverty, Inner City Law Center, Mental Health Ad-vocacy Services, Center for Law in the Public Interest, Protection and Advocacy, Inc.,and San Fernando Valley Neighborhood Legal Services.2. Several major law firms, including Irell and Mannella; Donovan, Leisure,Newton and Irvine; and Munger, Tolles and Olson, have made important contributions.3. CAL. WELF. & INST. CODE § 17,000 (Deering 1985).https://openscholarship.wustl.edu/law_urbanlaw/vol31/iss1/5HOMELESS LITIGATIONwas high, the county insisted on birth certificates. In the summer,lesser forms of identification might suffice.The second barrier was simpler, but no less effective. Some welfareoffices established quotas for the number of homeless people theywould assist. People who came in after the quota was full, no matterhow desperate their situation, were told to return at a later date. Bothof these practices were ended by a temporary restraining order inEisenheim v. Board of Supervisors,4 the first case brought by the Home-less Litigation Team.The identification and appointment systems utilized by the Los An-geles County Department of Public Social Services are typical of thebureaucratic devices that government agencies impose in order toachieve organizational goals. These goals include controlling the ap-proved caseload and, ultimately, adhering to the budgetary bottom lineestablished by political decision makers. If one thinks of welfare sys-tems such as the general assistance program in Los Angeles County as"systems" in the generic sense,5 one can analyze them empirically andobjectively, despite the fact that the "throughput" involved is humanlife. Viewed in this way, the regulations enjoined in Eisenheim are "in-put control," regulating the flow of homeless peoples into the countywelfare apparatus. Though this coldhearted analysis may offend thesensibilities of those charged with advocating the human rights of thepoor, it is exactly the kind of analysis that leads bureaucrats and politi-cians to make the decisions that advocacy litigation seeks to reverse.There are several other kinds of "input controls" that have drasticconsequences for homeless people. Perhaps the most Kafkaesque is therequirement that one must have an address in order to receive benefits.Such a regulation presents an almost classic Catch-22 for the homelesspoor. In order to receive an income, one must have an address. Inorder to pay rent to establish an address, one must have an income.Courts have at times struck down these regulations;6 at other timesthey have upheld them as necessary to control fraud.7 The Alice-in-Wonderland character of these regulations makes them an appealingtarget for litigation. Advocates of the rights of the homeless consid-ered challenging the address requirement of the General Relief pro-4. No. C47953 (Los Angeles County Super. Ct. December 20, 1983).5. See, e.g., C. WEST CHURCHMAN, THE SYSTEMS APPROACH (1979).6. Martin v. Milwaukee County, No. 656-770 (Milwaukee County Cir. Ct. January9, 1985).7. See, e.g., Adkins v. Leach, 17 Cal. App. 3d 771, 95 Cal. Rptr. 61 (1971).1987]Washington University Open Scholarship140 JOURNAL OF URBAN AND CONTEMPORARY LAW [Vol. 31:137gram in Los Angeles County. Investigation of welfare statisticsrevealed, however, that the county rarely denied assistance to homelesspeople just because they lacked an address. An address would, in fact,result from the referral of the homeless person to one of the county'sskid row hotels. Litigation focused on this regulation might have beenintellectually interesting, but would have had neither an effect on thestreets nor a measurable benefit for homeless people. Scarce advocacyresources must be targeted toward meaningful ends, based not upon ana priori supposition, but upon a solid factual analysis of the systemscausing the harm.Other "input controls" should be analyzed in the course of develop-ing a litigation strategy for homeless people. Some can be determinedonly by spending days in the welfare office, observing the process as itexists in reality, as distinguished from the process that regulations de-scribe. Perhaps the most insidious input control is the complexity ofthe application and intake process itself. There is no concensus on thepercentages of the homeless population who are mentally disabled,although a greatly disproportionate number of the homeless sufferfrom mental illness.8 It is equally clear that the application processrequired to obtain even emergency shelter is often so complex and chal-lenging that individuals with any significant mental impairment havelittle chance of successfully completing the process. This complexity isoften intentional. In Los Angeles, a high ranking welfare official ad-mitted that the "welfare application process ... was designed to berough. It is designed quite frankly to be exclusionary." 9 Whether bydesign or not, the application process may present to a mentally dis-abled homeless person as insurmountable an obstacle as does a stair-way to a paraplegic. Because local governments often use federal fundsto support the welfare system, such barriers may violate section 504 ofthe Federal Rehabilitation Act of 197310 or similar state laws. 1Another "input control" arises, paradoxically, from the emergency8. See, e.g., Arce, Identifying and Characterizing the Mentally III Among the Home-less, in THE HOMELESS MENTALLY ILL (H. R. Lamb ed. 1984).9. Address by Robert Chaffee, Director of Bureau of Assistance Payments, Los An-geles County Department of Public Social Services, to Los Angeles Countywide Coali-tion on the Homeless (Oct. 9, 1984).10. 29 U.S.C. § 794 (1982). The Rehabilitation Act prohibits discrimination againstthe handicapped.11. An action challenging the discriminatory impact of the General Relief applica-tion process on the mentally disabled is currently pending in the Los Angeles CountySuperior Court: Rensch v. Board of Supervisors, No. C595155.https://openscholarship.wustl.edu/law_urbanlaw/vol31/iss1/5HOMELESS LITIGATIONshelter itself. If the emergency shelter is dangerous, dirty, and degrad-ing to homeless people, they will make a rational decision to remain onthe streets. Thus, in a very practical sense, a 'shelter' that does notmeet minimal standards of cleanliness, warmth, space and rudimentaryconveniences is no shelter at all.12Homeless parents may choose to remain on the streets with theirchildren rather than subject them to life in a dormitory-style shelterhousing an undifferentiated population of homeless adults. Indigentindividuals may forego assistance rather than give up their privacy in acounty-sponsored poorhouse.13 In Los Angeles, the Homeless Litiga-tion Team, after obtaining court orders mandating provisions for shel-ter, found that their clients refused to use vouchers for skid row hotels.The homeless clients felt that the hotels were more dangerous and un-sanitary than the parks and alleys to which they had access.14Despite the relative effectiveness of the "input controls," somehomeless people succeed in obtaining benefits. In Los Angeles County,for example, each month approximately 5,000 homeless people seekemergency assistance from the county. Of these, about 40% will even-tually qualify for general assistance. In order to control the budget ofthe welfare department, then, the bureaucracy must devise a means ofinsuring that people do not remain indefinitely on the welfare roles.This is not necessarily an inhumane goal. If a general assistance pro-gram serves as a "bridge" to income maintenance programs for thedisabled, like Supplemental Security Income, or as a source of supportfor the employable young person while he or she finds work, the pro-gram is working as most people believe it should. Unfortunately, itcosts more to achieve these worthy goals than to terminate recipientsfor little or no reason. Thus, in Los Angeles County, approximately2,500 people per month are terminated from General Relief and givena "sixty day penalty" that prohibits them from reapplying for assist-ance within two months of termination. The county imposes the "sixty12. McCain v. Koch, 127 Misc. 2d 23,484 N.Y.S.2d 985 (N.Y. Sup. Ct. 1984) aff'das modified, 117 A.D.2d 198, 502 N.Y.S.2d 720 (1986).13. In Robbins v. Superior Court of Sacramento County, 38 Cal. 3d 199, 695 P.2d695, 211 Cal. Rptr. 398 (1985), the California Supreme Court enjoined county officialsfrom utilizing such a mandatory "poorhouse" in Sacramento, California as a means ofcontrolling general assistance costs.14. Another lawsuit, Paris v. Board of Supervisors, No. C523361 (Los AngelesCounty Super. Ct.), was filed challenging uninhabitable conditions in the voucher ho-tels. The court issued interim orders requiring inter alia, that homeless persons not besent to hotels that do not furnish heat in the winter.1987]Washington University Open Scholarship142 JOURNAL OF URBAN AND CONTEMPORARY LAW [Vol. 31:137day penalty" for violation of one of several program rules: being latefor the work project job, failing to turn in a form on time, or failing todocument the required twenty job searches per month. At any giventime, then, nearly 5,000 destitute persons are added to the ranks of theunassisted homeless in Los Angeles County alone. In defense of itspolicy, the Los Angeles Welfare Department argued that eliminatingthe sanction would cost approximately $11 million per year. 5 In Ban-nister v. Board of Supervisors,16 the plaintiff challenged the sixty daypenalty on both procedural and substantive law grounds. The proce-dural challenge succeeded, at least on paper, leading to regulatorychanges requiring that violations of welfare rules be "willful" beforethe welfare department can impose sanctions. The substantive chal-lenge, based on the proposition that punishment should be somewhatrelated to the offense,17 remains in litigation.Although there is obviously no single "correct" approach or litiga-tion strategy to deal with the problems of the homeless, there is a testfor a successful litigation strategy. The litigation must have somechance of success in court, and this success must translate into con-crete results on the streets. Legal analysis may help lawyers to mea-sure the first criteria, but only hard, empirical field research canprovide answers to the latter. In order to make scarce resources effec-tive, attorneys engaged in institutional litigation must develop "mod-els" of the systems that victimize clients. These models must beconstructed on the basis of objective and accurate information. Mostlarge bureaucracies maintain extensive management information sys-tem (MIS) reports that detail statistically the consequences of policyand program. In order to fully understand a system affecting humanbeings, attorneys must leave the office or the law library and spendtime on the streets and in the welfare office waiting rooms, talking topeople and viewing the "system" in its most human terms. It is neces-sary to have accurate information to guide a litigation strategy. Moreimportantly, it is necessary to bring the often abstract pursuits of attor-neys back down, quite literally, to the cold concrete-to face the mis-eries that mock all pretensions of a just society.15. Bannister v. Board of Supervisors, No. C535833 (Los Angeles County Super.Ct. filed Feb. 25, 1985).16. Id.17. See Hale v. Morgan, 22 Cal. 3d 388, 584 P.2d 512, 149 Cal. Rptr. 375 (1978).https://openscholarship.wustl.edu/law_urbanlaw/vol31/iss1/5

Litigation on Behalf of the Homeless: Systematic Approaches

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