The Second Survival Fight
A. The Threat of Outright Abolition and Retrenchment (1981–1982)
1981
In early February, the Reagan Administration proposes zero funding for the Legal Services Corporation, suggesting block grant funds as an alternative.
The LSC Board adopts the Sachs plan for future directions in Legal Services, which in part endorses the notion that Legal Services should serve as “general counsel” to the poor in a given area. The plan has no effect because the Reagan Administration Board appointees, who take office at the end of 1981, ignore it.
In reaction to the Administration’s proposal for elimination of the LSC, the ABA, bar associations around the country, and the Legal Services community collectively undertake an unprecedented and effective effort to communicate support for Legal Services.
H.R. 3480, a reauthorization bill, passes the House with a number of very damaging amendments, but dies in the Senate.
Senator Lawton Chiles of Florida adds four restrictive amendments to the appropriations bill (on lobbying, class actions, governing boards and illegal aliens). The bill appropriates $241 million, a cut of $80 million (25%) from the previous year. Ultimately, however, a continuing resolution (CR) is passed instead of the appropriations bill. Although the CR contains only $241 million, it does not include the Chiles restrictions.
The LSC approves a policy requiring Legal Services programs to allocate 10% of LSC grants to increase and provide for private attorney involvement in the delivery of Legal Services. This requirement is later increased to 12.5%, where it remains today.
Apparently concluding that the plan to eliminate the LSC had failed, at least temporarily, President Reagan makes six recess appointments to the LSC Board on December 30 (recess appointments made during a Congressional recess are not submitted for the advice and consent of the Senate).
On New Year’s Eve, the new LSC Board meets by telephone conference call and adopts a resolution that they think bars all 1982 grants; those grants, however, had already been made.
During the year, programs in New Jersey and around the country undergo a painful process of “retrenchment” planning, deciding how they will allocate 25% cuts. With inflation, the cuts actually amount to 30%. By the beginning of 1982, the number of New Jersey Legal Services staff has dropped by 25%, to fewer than 300 total staff; the number of lawyers has dropped from 135 to 100; and the 1982 caseload would be just over 32,000, down nearly 25% from the 1980 high of 42,600.
LSNJ convenes a statewide planning process to look at retrenchment alternatives, including the possibility of statewide consolidation, and coordinate local efforts.
LSNJ publishes first edition of Looking Out for Your Legal Rights, a monthly community legal education newsletter.
Nationally, Interest on Lawyers’ Trust Accounts (IOLTA programs) takes root as a supplemen-tary funding source; by 1986, 47 jurisdictions will have IOLTA funding programs, but New Jersey is not yet among them.
Because of the imminent cutbacks, LSNJ expands efforts to publish community legal education materials so that people can be more able to help themselves. Accordingly, extensive tenancy, consumer, and education law manuals are developed.
As a result of the planning and retrenchment process, LSNJ completely restructures its board, to begin in 1982. The old LSNJ board, consisting of the director, a staff representative, and a client representative from each program, becomes the newly constituted Policy Council, which meets monthly to share information and, where appropriate, take advisory positions on key Legal Services issues.
1982
In March, LSNJ’s reconstituted board holds its first meeting and Douglas S. Eakeley is elected chair.
William Harvey is elected LSC Board chair in March.
In April, Gerald Caplan is named acting president of the LSC, replacing Dan Bradley; he is followed by Clinton Lyons, on an acting basis, later in the year. Finally, Donald Bogard, a Harvey protégé, is named president in October. Additional recess appointees are named in October and new regulations are proposed, including a total ban on class actions against government. After extensive opposition, these proposals are withdrawn.
In December, President Reagan withdraws all LSC board nominees after it becomes clear that the Senate will only approve some; however, all are continued as recess appointees. These appointees and the new president are embarrassed by a rash of disclosures regarding excessively high compensation and travel claimed by the LSC recess board appointees; these disclosures in turn anger Congresspeople.
The 1983 Continuing Resolution (CR), passed in December of 1982, adds restrictions similar to the previous Chiles proposals, as well as an “affirmative” rider, which would prevent the LSC from taking adverse actions against Legal Services programs unless a majority of the LSC had been confirmed by the Senate. This affirmative rider keeps the basics of the national Legal Services program in place during 1983 and 1984.
In an unprecedented step, the New Jersey State Legislature grants Legal Services a funding increase of $750,000, in response to a $1 million funding request made by LSNJ on behalf of all New Jersey programs. Governor Kean line item vetoes the entire $750,000.
The December LSC Board meeting makes the second lead story on national network news, as the LSC Board flees down back hotel corridors and meets in a kitchen in order to avoid press and public speakers. Board chair Harvey is seen sporting a bulletproof vest, apparently concerned by the large number of LSC grantees seeking to address the Board.
B. The Struggle to Maintain a Strong National Program (1983–1991)
1983
The LSC Board consists solely of recess appointees, ranging in number from two to six.
By the spring, all of the key pre Reagan LSC headquarter staff have been replaced.
The 1984 appropriations bill provides for $275 million and contains an even stronger affirmative rider, but also includes the 1983 riders and new provisions restricting training and reducing protections around denial of refunding hearings.
LSNJ and the New Jersey State Bar Association co sponsor New Jersey’s first Awards Reception for private lawyers and supporters of Legal Services. The gathering is addressed by Chief Justice Wilentz.
In June, Governor Tom Kean approves $500,000 of an increase of $1 million in state funds approved by the Legislature in response to LSNJ’s request for $1.9 million; the Governor line item vetoes the other $500,000. This marks the first increase in Legal Services’ $250,000 state funding since 1968.
In the summer, the LSC conducts unannounced raids on its own regional offices, seizing files and beginning a process of firing personnel.
In November, the LSC Board increases the required private attorney involvement percentage to 12.5%.
The LSC begins a series of “monitoring” visits to grantees, often on very short notice. Tension quickly builds with field programs over what grantees perceive as attempts to infringe upon attorney client confidentiality, overly intrusive and excessive paperwork requests, and demeaning conduct by monitors. This tension continues to build each year, and continues into 1986.
1984
The LSC begins experimentation with alternate delivery schemes, particularly funding clinics and contracting with private law firms. Critics see these as steps intended to supplant core staff attorney programs.
LSNJ launches its own in depth study of the legal needs of the poor in New Jersey; results are made available in the fall of 1986.
LSC’s 1985 appropriation is set at $291 million, with the same riders as in previous years.
LSNJ holds it fourth statewide Conference, the first since 1980, at the Somerset Marriott in early September; from here on, the Conference will be an annual affair.
National LSC Board members are finally confirmed, negating the effect of the affirmative rider for 1985.
1985
The LSC dismantles the Reginald (“Reggie”) Heber Smith recruitment program, the principal method for national recruitment of skilled lawyers, particularly minorities.
Legal Services’ 1986 appropriation is set at $305 million, but then cut to $292.4 million by the effects of the Gramm-Rudman legislation.
LSNJ secures an additional $400,000 in state appropriations.
1986
In June, the LSC Board decides to eliminate all funding for national and state support, and passes an extremely restrictive regulation on legislative advocacy, training, and other activities. These actions are blocked by the Senate Appropriations Committee in August.
LSNJ holds its 20th Anniversary commemoration in September and kicks off its first Campaign for Justice, a statewide fundraising drive for Legal Services.
In conjunction with all New Jersey Legal Services programs, LSNJ begins “program reviews,” visits designed to improve the quality of legal services. These visits are part of LSNJ’s efforts to develop procedures to help programs in difficulty, recommend procedures and standards for hiring new project directors, and provide systematic help to new directors.
With the help of Alexander Jasman, New Jersey-certified shorthand reporters start a new program that donates free deposition transcripts to Legal Services programs.
The ABA promulgates the final version of the “Standards for Providers of Civil Legal Services to the Poor” after seven years of work by the Legal Services community and the ABA’s Standing Committee on Legal Aid and Indigent Defendants.
1987
Clark Durant, LSC Board Chair, in an ABA speech and subsequent Today Show appearance, urges the elimination of the Legal Services Corporation and calls for legal services to the poor to be delivered by using unregulated non lawyers as providers.
LSNJ’s landmark statewide legal needs study is competed, showing an enormous unmet latent demand for legal assistance.
New Jersey State Bar Trustees recommend adoption of an opt out IOLTA program. The New Jersey Supreme Court adopts the new IOLTA program and court rule.
De Miller receives the NLADA Reginald Heber Smith Award (the highest award for Legal Services advocates) at the Annual NLADA Conference in Miami.
The LSC Board unsuccessfully tries to transfer all funds away from national and state support and training. One LSC Board member, Leanne Bernstein, sues the LSC, trying to strike down Congressional appropriations riders that limited the LSC’s regulatory authority and required it to continue funding programs, and trying to have the LSC Act itself declared unconstitutional, claiming a violation of the separation of powers.
The LSC’s annual appropriation reaches $310 million (compared with $321 million in 1980), which is $5 million more than the LSC itself requested.
LSC promulgates new restrictions on legislative and administrative advocacy.
LSNJ makes the first distribution to regional programs from its Campaign for Justice.
1988
LSNJ secures a $500,000 (40%) increase in state funding for Legal Services, bringing the annual total of Legal Services funding from state and federal sources to $3.2 million.
In October, LSNJ publishes its 400 page book You and the Law In New Jersey through Rutgers University Press.
In November, the new IOLTA program actually begins operation and collections from attorneys. Ruth Birkhead becomes its Executive Director.
Congress appropriates $308.6 million for Legal Services in 1989, a slight reduction (the LSC’s FY 1989 request had been only $250 million). The LSC Board then approves a FY 1990 request to Congress of only $295 million (the 1980 funding level was $321 million).
Led by LSC Board Chair Clark Durant, LSC staff lobbies to convince President Reagan to veto the LSC’s own appropriation.
Dan Bradley, LSC President from 1979 to 1982, dies of AIDS at the age of 47.
LSC hires three outside lobbying firms to lobby against its own appropriations.
1989
LSC initially funds programs on a month-to-month basis, then later in the year extends funding first to May, then September, then December.
LSNJ secures another $250,000 increase in state funding.
The first IOLTA distribution to Legal Services, over $1 million, is made in July.
Opponents of national Legal Services, led by the American Farm Bureau Federation, launch the Legal Services Reform Coalition, an effort to sharply restrict LSC activities via legislation. LSC President Terrance Wear is an active participant in the initial briefing. The Coalition proposals are included in the first McCollum Stenholm Amendment.
LSC pays $80,000 to a conservative lawyer and think tank for a legal opinion that the LSC is unconstitutional.
LSC President Terrance Wear actively lobbies for a conservative slate of new Board nominees, and then barely survives a 6-5 vote to dismiss him in December.
Congress appropriates $321 million for the LSC in 1990.
LSC launches its push for competitive bidding for grants.
Felipe Chavana becomes executive director of Essex-Newark Legal Services (ENLS).
1990
Douglas S. Eakeley leaves as chair of the LSNJ Board in January, after nearly 10 years, to become first assistant attorney general under former LSNJ Board member Robert Del Tufo. He is succeeded as chair by William Hardin.
The IOLTA distribution to Legal Services hits $4 million on an annual basis, bringing the annual Legal Services funding secured by LSNJ to $7.5 million.
President George H. W. Bush makes a new round of recess appointments to the LSC Board, including Howard Dana of Maine, a former Board member and strong Legal Services supporter.
Legal Services’ state funding is cut for the first time, by $200,000.
LSNJ begins its Summer Public Interest Legal Intern Program with a special IOLTA grant.
Congress approves a $329 million FY 1991 LSC appropriation.
1991
LSNJ secures restoration of the $200,000 in state funding cut in the prior year.
Legal Services programs in New Jersey commemorate their 25th anniversary on September 25.
Dawn K. Miller joins LSNJ to work alongside Harris David on the Newark public housing case.