5 Matters That Shaped Access To Justice In 2021 – Law360

This year was an eventful one for access to justice in the United States. An eviction crisis and extreme weather events engulfed the nation. Voting restrictions and gerrymandering spurred a wave of lawsuits. And a chaotic end to America’s longest war created a sudden refugee crisis. Meanwhile, the legalization of cannabis in several states created new opportunities.

Here, Law360 looks back at major developments that shaped the access to justice legal community this year.

The Right to Counsel Movement Picks Up

Ronald S. Flagg, the president of Legal Services Corporation, told Law360 the COVID-19 pandemic recovery has been particularly tortuous for women and minorities.

“When we’re talking about things like eviction, these are things that certainly cut across demographic groups, but in disproportion affect people of color,” he said.

The right to legal assistance in civil cases gained a center stage this year, particularly in the area of eviction. John Pollock, the coordinator of National Coalition for a Civil Right to Counsel, a nonprofit that advocates for the right to legal representation in civil cases, told Law360 the pandemic prompted cities and some states to create new rights to legal representation for people risking eviction.

Even before the pandemic hit, 3.6 million evictions were filed every year in the United States, according to a study by The Eviction Lab at Princeton University that collected over 82 million court records. Before the pandemic, only five jurisdictions, all of them cities, had passed ordinances granting residents a right to counsel in eviction proceedings. Currently, there are 16.

New York City was the first jurisdiction in the nation to adopt a right to counsel in evictions in August 2017, followed by San Francisco and Newark the following year, and by Cleveland and Philadelphia in 2019. But as the pandemic ravaged the economy and caused people to lose jobs or income, others followed suit.

Since November 2020, eight cities and three states — Washington, Maryland and Connecticut — have codified an eviction right to counsel for indigent tenants in their laws through statutes, local ordinances or ballot initiatives.

“It’s gone pretty fast since the pandemic started,” Pollock said.

Eviction Right to Counsel

Since New York City first embraced it in 2017, more jurisdictions have enacted a right to counsel in eviction proceedings. Three states and 13 cities now have codified it in their laws.

When Where
August 2017 New York City
June 2018 San Francisco
December 2018 Newark, N.J.
October 2019 Cleveland
November 2019 Philadelphia
November 2020 Boulder, Colo.
December 2020 Baltimore
March 2021 Seattle
April 2021 Washington state
April 2021 Louisville
May 2021 Maryland
June 2021 Denver
June 2021 Connecticut
September 2021 Toledo, Ohio
October 2021 Minneapolis
December 2021 Kansas City, Mo.

Eligibility criteria for tenants vary. In San Francisco; Boulder, Colorado; Minneapolis; and Baltimore there are no eligibility requirements, though the latter prioritizes low-income residents. In New York, people earning 200% or less of the federal poverty level are eligible for full legal representation.

Some cities and states fund their right-to-counsel programs through their general revenue, while others rely on federal funding such as that provided by the American Rescue Plan Act, which President Joe Biden signed in March, the Emergency Rental Assistance Program and Fiscal Recovery Funds.

Studies show that in places where the right to counsel was passed, the number of people getting evicted has dropped. There were also fewer eviction filings.

Since the onset of the pandemic, a number of federal and state-mandated programs, including moratoriums on evictions and rental assistance, have helped people struggling to pay rent stay in their homes. But utilizing those programs without an attorney can be difficult, in part because of the bureaucracy involved, in part because of landlord opposition.

“Without counsel, a lot of those protections were illusionary,” Pollock said. “Right to counsel and the other protections are all kind of intertwined. They need each other.”

Battles Over Voting Restrictions Erupt

States across the United States enacted an unprecedented wave of laws tightening the rules around voting, drawing a flurry of lawsuits.

Legislators in those states, most of them Republicans, justified the measures as necessary to prevent election fraud, despite no evidence of widespread fraud anywhere in the country. Critics of those laws say the restrictions are aimed at suppressing votes in Democratic-leaning communities, targeting, in particular, Black and Latino voters.

A large number of firms are partnering with public interest groups to challenge restrictions on voting. Some also joined legal battles against alleged partisan gerrymandering that broke out in several states.

Reed Smith has been involved on both fronts. A team of attorneys joined hands with the NAACP Legal Defense and Educational Fund and The Arc, a nonprofit advocacy group supporting the rights of people with disabilities, to challenge a Texas law banning voting methods that were popular during the 2020 elections, such as 24-hour voting and drive-through voting, and making it a felony to send unsolicited mail ballot applications.

There are currently six suits challenging the Texas bill, all consolidated into one litigation that is currently at the motion-to-dismiss phase.

Another cohort of Reed Smith lawyers joined the Brennan Center for Justice in battling a redistricting procedure the GOP-controlled Ohio General Assembly passed in recent months, which critics say is designed to give Republicans an advantage.

“Minorities should not have their voting suppressed. We’re fighting that in Texas, we’re fighting it in Ohio,” Christopher K. Walters, a senior pro bono counsel at Reed Smith, told Law360. “It’s going to cost a fair amount of money for experts and things like that. It’s going to be quite a struggle.”

A legal challenge to another sweeping bill, enacted by Georgia in the spring, reached a milestone earlier this month when a federal judge in Atlanta rejected a motion to dismiss brought by state officials.

Georgia’s bill transferred oversight power from local governments to the state and made it a crime to give food or water to people standing in line to vote, a practice commonly called line warming. It also limited drop-off ballot boxes in heavily Democratic areas in Atlanta.

The suit, filed by Davis Wright Tremaine LLP and WilmerHale in conjunction with the Southern Poverty Law Center, American Civil Liberties Union Foundation, and the NAACP Legal Defense and Educational Fund, alleges Georgia’s law discriminates against Black and Latino voters and people with disabilities, and points to a history of racial discrimination tied to voting in the state.

On Dec. 9, U.S. District Judge J.P. Boulee for the Northern District of Georgia ruled the suits can proceed. Eight other suits challenging the Georgia bill are in federal court.

“Georgia’s long and shameful history of racially discriminatory voting schemes must end. We look forward to proving our claims and obtaining relief for our clients and all Georgia voters,” Grace Thompson, a Davis Wright attorney working to represent the plaintiffs, told Law360 in an email.

More States Legalize Cannabis

Six states legalized recreational use of cannabis, the largest number in a single year since Washington and Colorado first did it in 2012. Recreational use of cannabis is now legal in 18 states, the District of Columbia and two U.S. territories.

On Jan. 1, marijuana and its derivatives became legal to adults in Montana after voters approved a ballot measure at the polls on Nov. 3, 2020. New Jersey also legalized cannabis in February after a ballot initiative. New York, New Mexico, Virginia and Connecticut legalized cannabis through legislation.

Melissa Moore, the New York state director of the Drug Policy Alliance, a think tank that has been heavily involved in the legalization campaign across the country from lobbying lawmakers to drafting laws, said a shift in public opinion around marijuana propelled legalization efforts this year.

A study by Pew Research Center found that only 32% of Americans supported legalizing cannabis in 2006 while 60% of them opposed it. By 2016, those numbers were reversed: 57% favored legalization and 37% opposed it.

In another survey done in April, Pew Research found that only 8% of adult Americans said marijuana should be illegal, while 31% said it should be legal only for medical purposes, and 60% said it should be legal for recreational use as well.

“This is one of the few issues right now that’s actually supported by people across the aisle,” Moore told Law360. “There’s a broad recognition that prohibition hasn’t been successful at all in its stated goal, and it’s time to move on.”

States That Legalized Pot This Year

Six states legalized recreational cannabis this year, and two legalized medical cannabis, either through ballot initiatives approved by voters in the 2020 elections or by legislation. It’s the largest legalization push since Washington and Colorado first legalized recreational cannabis in 2012.

While legalization models vary from state to state, laws passed this year share a focus on social equity. In New York, the Marijuana Regulation and Taxation Act legalized adult possession of up to 3 ounces of marijuana and downgraded penalties for unlawful use.

The law’s most trailblazing feature, however, centers on community reinvestment: Tax revenue is channeled into communities of color, which more than others bore the brunt of cannabis prohibition, experiencing higher rates of incarceration and missed economic opportunities. The law also prioritizes certain groups of people, such as people of color, women, and veterans injured during service, for licensing.

T. Andrew Brown, president of the New York State Bar Association, hailed cannabis legalization in the state as “one of the most significant achievements of this year’s legislative session.”

“We look forward to serving as a model that other states can follow in the new year,” said Brown, who is also president of Ascend Wellness Holdings New York. Ascend Wellness Holdings is a multistate cannabis operator that has assets and partners in Illinois, Michigan, Ohio, Massachusetts and New Jersey, and is working to expand its operations into New York.

The MRTA also enacted a sweeping expungement process in which old records for old offenses are automatically cleared. New Jersey also adopted a broad expungement policy as part of its legalization of cannabis.

The wave of legalization taking place this year saw one state reversing course. In South Dakota, voters chose to legalize recreational marijuana through a referendum on Election Day last year, but results were challenged in court by legalization opponents with the backing of Republican Gov. Kristi Noem.

Last month, the South Dakota Supreme Court struck down the ballot measure, Amendment A, as unconstitutional. In a 4-1 decision, the court held that with provisions addressing the regulation of hemp and medical marijuana patients’ access to cannabis, the measure violated the state’s single-subject rule, which holds that ballot initiatives can ask voters to weigh in on only one issue at a time.

Next year is expected to be another busy year for states that legalized cannabis. Legislators in several states have prefiled bills to tweak their tax codes to accommodate tax breaks for people investing in the cannabis business. Their purpose is to ease the burden of federal tax laws, which prohibits deductions for businesses engaged in the production and sale of substances that are federally illegal.

Cannabis remains a Schedule I controlled substance alongside heroin, LSD, ecstasy and other drugs that are considered highly addictive and have “no currently accepted medical use.”

Federal legislation to legalize cannabis has stalled on Capitol Hill.

Natural Disasters Spur Legal Needs

Adding to the economic slowdown and job loss caused by the pandemic, extreme weather events hit large areas of the country this year, creating a sudden need for legal representation for people who were impacted.

In late August and early September, Hurricane Ida made landfall in Louisiana and moved across the United States, causing heavy flooding and killing nearly 100 people. A category 4 storm and the second-strongest hurricane to hit Louisiana, Hurricane Ida devastated coastal communities in the southern part of the state, then slowly reached the Northeastern states, where it caused unexpected flash flooding and fatalities in New York City.

Laura Tuggle, the executive director of Southeast Louisiana Legal Services, told Law360 about 810,000 people had registered for assistance from the Federal Emergency Management Agency.

Collapsing roofs, mold and other damage caused by flooding and heavy rain have added to the loss of income people experienced during the pandemic, Tuggle said. People have been hesitant to ask their landlords for repairs or exercise their basic rights as tenants. In many instances, landlords have evicted tenants wholesale, saying they needed access to buildings for repairs.

“They’re so worried they’re going to get pulled out,” Tuggle said. “The housing crisis already brought about by the pandemic [has been] further worsened by the impact of the storm.”

Hurricane Ida was the most destructive of a series of storms that battered the Eastern United States and caused over $70 billion in damage, according to analysts. Hurricanes Ida, Nicholas and Henri, and Tropical Storms Fred and Claudette, also caused fatalities and destruction, which created localized needs for legal assistance.

Wildfires raging in the Western United States, some of which were fueled by a severe and unprecedented heat wave, also resulted in thousands of people urgently needing lawyers.

In California, the American Bar Association and a Disaster Legal Assistance Collaborative, a coalition of bar associations, legal aid providers and law firms, set up a legal hotline helping survivors of the fires apply for FEMA relief and other government assistance, as well as medical, life and property insurance claims. Attorneys also provided free legal assistance on mortgage-foreclosure problems and helped survivors replace important documents destroyed during the fires.

More recently a tornado outbreak traveling across the Mid-Southern states between Dec. 10 and Dec. 11 killed nearly 90 people. At least 74 of those fatalities occurred in Kentucky, where some people are still unaccounted for.

Cory Dodds, a staff attorney at Kentucky Legal Aid, told Law360 his organization is assisting survivors to apply for FEMA relief and helping those whose claims are being rejected. Over 500 homes have been wiped out by the tornadoes in Warren County, where the organization is headquartered, alone. Several hundred more have been damaged, and thousands of families have been displaced, he said.

“Right now, we’re focusing on providing immediate legal needs like replacement EBT cards and important documents securing identification,” Dodds said.

FEMA can pay up to $35,000 to each household that is not covered by insurance, or that has received insufficient help. Impacted residents have up to 60 days to submit a claim with FEMA, which then requests documents. The process involves securing information about insurance settlements, if there are any, and gathering estimates from contractors, which could be burdensome without legal help.

“Once folks’ immediate needs for shelter, food are met, we can help folks begin gathering that documentation and help them submit it and keep track of their application in case they need to appeal,” Dodds said.

Helping Afghan Refugees Flee Taliban Control

About 83,000 refugees have so far arrived in the U.S. since the August pullout of the United States military from Afghanistan paved the way for a return to Taliban rule. About 90% of those refugees are Afghan nationals, some of whom have special visas while others have been admitted through a process called humanitarian parole, a U.S. Department of Homeland Security spokesperson told Law360.

Law firm attorneys have helped some refugees escape the country, and they are now assisting them as they resettle in communities across the United States.

T. Clark Weymouth, a Hogan Lovells partner, said about 170 of the firm’s attorneys have helped about 1,000 Afghans evacuate their country and are now counseling them on how to obtain immigration relief. Selendy & Gay PLLC has worked on a project that helped 500 people, many of them schoolgirls, escape Afghanistan and resettle in the United States.

Orrick Herrington & Sutcliffe LLP has engaged with about 50 people who are still in Afghanistan in an attempt to secure travel documents for them to come to the United States. A team of Winston & Strawn LLP attorneys working pro bono have assisted an Afghan female journalist and freelancer for USA Today, Fatema Hosseini, who is applying for asylum in the United States after escaping her country.

Dozens of other firms have joined hands with humanitarian organizations in helping refugees.

Rene Kathawala, the firmwide pro bono counsel at Orrick, told Law360 helping refugees is challenging for the attorneys because it involves trying to facilitate their escape from Afghanistan, which isn’t easy.

“This is an engagement that is, frankly, different [from] many,” he said.

Applying for humanitarian parole, which allows people who can’t secure visas to relocate to the United States temporarily for humanitarian reasons, involves filing a petition, Form I-131, but the process is far from simple. None of the people Orrick has helped have so far been approved for travel to the United States.

U.S. Citizenship and Immigration Services reviews applications and grants admission on a case-by-case basis. To meet the standard for parole, an applicant must show evidence of a verifiable, serious and imminent threat.

In a denial letter to an applicant an attorney provided to Law360 earlier this month, USCIS says humanitarian parole will not be granted to individuals who might also be eligible for refugee status. An immigration attorney estimated that just over 3% of applications for humanitarian parole will ultimately be granted.

–Additional reporting by Grace Dixon and Sam Reisman. Editing by Robert Rudinger.

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

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