The intrepid lawyer

Sometimes you just have to pull up your skirt and fight . . . Kelli's latest blog post.

THE GAG ORDER THAT PREVENTED ME FROM TALKING ABOUT FORECLOSURE FOR 16 MONTHS

IF I COULD WRITE EVERYTHING . . .

I am a lawyer.

This is a fact I have resisted, decried, announced proudly, tried (in a futile effort) to use for social advantage, and lived with for over a decade.

One of the most difficult parts of being a lawyer is client communication—anxious clients demand attention via phone and email while pressing deadlines require quiet time. This was my biggest challenge, and I set big boundaries around client communication—I understood the desire for information, but, as a solo practitioner, I had to limit my representation to clients who could put emotional needs for contact aside so I could meet deadlines.

In 2013, I met a young woman who hired a lawyer to defend her home from foreclosure. She came to me after an acquaintance checked her case status online to discover that the home was gone—eviction was imminent.

Indeed, the home was gone. The client had paid a lot of money—money that could have been used working out a deal with the foreclosing lender or finding new housing—for nothing. No competent steps had been taken to save the home.

It was hard to believe a lawyer would take advantage of those in dire need—those in foreclosure. And, as I discuss elsewhere (Blog Post on Saving Homes--before the gag went on!), there is a lot that can be done to save homes. At very least, one could honestly tell a client there was nothing to be done—taking money, making false promises, and doing nothing is unjustifiable.

Investigation showed the lawyer targeted African-American communities for his sub-standard services. Because of this, one of the counts in our multi-count complaint was for violation of the Fair Housing Act.

Rather than fighting the lawsuit, the lawyer sued ME for defamation. Because the lawsuit clearly violated the FHA’s prohibition on retaliation, interference, and intimidation (42 U.S.C. § 3617), I removed it to Federal court. While the case was removed, the other side filed a motion for an order from the STATE court. The state court acknowledged the case was removed (meaning, under well-known removal rules, the state court could do nothing and had no jurisdiction whatsoever), but granted the injunction anyway. I was forbidden to talk to my own client, co-counsel, or the community for 16 months. The prohibition was vague, and I was not really sure what I could or could not do. Could I call my mother on Mother’s Day? Probably—as long as I didn’t talk to her about foreclosure.

The injunction stayed in place for 16 months.

For 16 months, I could not talk to my client. I could not talk to my co-counsel. I could not give housing presentations to community groups. I could not blog. The clinic I founded months before floundered with a director who could not talk to volunteers, clients, or allies. I could not work on my client’s FHA case.

Did the injunction violate my rights? Of course. However, I have rights and no remedy—judges are clearly immune, and the judge in this case has retired and is voluntarily inactive as a lawyer.

There is no redress for the pain of a lawyer unfairly and arbitrarily barred from serving her client. I remained quiet for a long time. Initially, I had a court order mandating my silence. Later, I had pending legal matters—my own and my client’s—to consider. Finally, I have had the long road of recovering from the pain of having the unthinkable done to me and having virtually no legal address. This has meant depression to the point I could barely get out of bed, physical pain and deterioration, and disbelief—a sense that the law books had simply been thrown out.

I decided, as 2017 approaches, to come forward. I cannot prevent violations of the FHA. I cannot tell any lawyer or client that their right to communicate with each other will be respected. I cannot believe many things I believed before 2013.

However, I know that I can help clients vindicate their fair housing rights with a renewed appreciation for the ability to talk to a client and explain a case status or strategy. I can stand by my fellow lawyers when advocacy is needed.

I cannot be silenced.

. . . I WOULD SHOCK THE WORLD. --Caterina Sforza

Last, Let's Scare All the Lawyers . . . .

This is an article I wrote some time back for the DePaul University Journal of Social Justice. A lot of work remains to be done. In the end, I was not awarded more than very minor recompense for the poor behavior of opposing counsel who got an order preventing me from talking to my own client, co-counsel, or the community. The order was obtained while the case was on removal (so the state court entering the order should not have heard the case at all).

The larger question is: will the courts ever recognize that retaliating against a fair housing advocate/lawyer for advocating for a fair housing client must be punished or the Fair Housing Act has no teeth? I cannot both criticize fair housing lawyers for being too passive without also acknowledging that there is a more than reasonable fear that our best efforts will cost us our livelihoods, as my own livelihood was taken away by an order that stood for nearly 16 months.

Read my article here:

Last, Let's Scare All the Lawyers . . . .

Much Ado About Disparate Impact . . . . Or, Much About Doing Nothing

Forbes recently published an article that asks, “Could the Fair Housing Act be used to abolish restrictive zoning?” (http://www.forbes.com/sites/scottbeyer/2016/12/02/could-the-fair-housing-act-be-used-to-abolish-restrictive-zoning/#490f1dacdd71)

Why, yes. Yes it can.

Since at least 1977.

The real question is, “Could the Fair Housing Act be more neglected?”

Why, no. One hopes not.

Here’s why.

The Fair Housing Act has allowed disparate impact claims since time immemorial. By “time immemorial,” I mean, since I was about 8 years old. Some of you know this was a very long time ago. In 1977, the Federal Court of Appeals for the Seventh Circuit said:

“A strict focus on intent permits racial discrimination to go unpunished in the absence of evidence of overt bigotry. As overtly bigoted behavior has become more unfashionable, evidence of intent has become harder to find. But this does not mean that racial discrimination has disappeared. We cannot agree that Congress in enacting the Fair Housing Act intended to permit municipalities to systematically deprive minorities of housing opportunities simply because those municipalities act discreetly. . . .

“We therefore hold that at least under some circumstances a violation of section 3604(a) can be established by a showing of discriminatory effect without a showing of discriminatory intent.” Metro. Hous. Develop. Corp. v. Vill. of Arlington Heights, 558 F.2d 1283, 1290 (7th Cir. 1977). A copy of the case is available here: http://openjurist.org/558/f2d/1283/metropolitan-housing-development-corp-v-village-of-arlington-heights

Note that the court says “showing of discriminatory effect.” In other words, they are discussing evidence, not a cause of action. This is important because evidence shifts from case to case; a cause of action can be eliminated. In other words, an idea like presumption of fault might be eliminated—but a plaintiff’s ability to show that a defendant plowed into the rear of a car at a red stop light would not be. No matter what labels were invoked, the plaintiff would very likely recover.

Move forward nearly forty years, and you’ll see rooms full of fair-housing lawyers hand-wringing over whether disparate impact exists. So, in 2013, you’ll see SCOTUSBlog characterizing a case as asking, “Whether disparate impact claims are cognizable under the Fair Housing Act.” 

(http://www.scotusblog.com/case-files/cases/mount-holly-v-mt-holly-gardens-citizens-in-action-inc/)

In fact, blogs and newspaper articles went so far as to contemplate the death of fair housing. MSNBC said that the settlement of the Mount Holly case, keeping disparate impact off the Supreme Court’s docket, “spared” the very Fair Housing Act itself. (http://www.msnbc.com/msnbc/mount-holly-settlement-spares-fair-housing-act-for-now) Wait! In 1977, the court said . . . “We therefore hold . . . “.  Metro. Hous. Develop. Corp., 588 F.2d. at 1290.

The hand-wringing continued, largely at conferences with well-stocked snack tables, past 2013. Over donuts, concerns were aired over a case looming large (in imaginations): Texas Dep't of Hous, & Cmity Affairs v. Inclusive Communities Project, Inc., 576 U.S. ___ (2015). The Court recalled its own long history of affirming disparate-impact type theories, recalling its own 1988 (the year I graduated from high school) invalidation of a zoning scheme that had a . . . disparate impact:

“Suits targeting unlawful zoning laws and other housing restrictions that unfairly exclude minorities from certain neighborhoods without sufficient justification are at the heartland of disparate-impact liability. See, e.g., Huntington v. Huntington Branch, NAACP, 488 U. S. 15, 16–18.” Huntingon is found at: 488 U.S. 15 (1988). Or, here: https://scholar.google.com/scholar_case?case=16996221344809098022&hl=en&as_sdt=6&as_vis=1&oi=scholarr A link to Inclusive Communities is here: https://www.supremecourt.gov/opinions/14pdf/13-1371_m64o.pdf

Of course, the Fair Housing Act itself was never threatened—if anything was threatened, it was one strain of evidence that could be introduced to show discrimination occurred. Saying the Fair Housing Act was threatened is like saying the entire field of tort law is eliminated because one state applies a contributory negligence theory as a bar to recovery. In other words, fair housing standbys, like the classic case of black people having doors slammed in their faces by landlords hurling racial epithets, would have been just as viable as ever. As the Seventh Circuit pointed out in 1977, “overtly bigoted” actions are (were?) on the decline, so disparate impact is helpful in finding relief where discrimination is more subtle. This was a matter of evidence—people were no longer making bigotry clear with racial slurs, “no blacks” advertisements, or similar overt acts. But disparate impact has always been the delicious frosting piled high on the fair housing cupcake. It was never the cupcake itself.

But, even giving credence to the idea that the law on disparate impact was ever anything less than clear, the hysteria surrounding the cases was nothing more than a distraction from the very real work in front of those who really want to bring about fair housing. During the swirl of hysteria, I successfully litigated a case that hinged, in part, on disparate impact. We survived a motion to dismiss, and, with a lot of hard work on the part of the court system and all the parties, eventually settled.

Throughout the litigation, I was continually cautioned by well-meaning, experienced fair housing practitioners that I was tilting at windmills because no one was really sure about this disparate impact thing. Now, I practice in Illinois—within the very Seventh Circuit that gave us Metropolitan Open Communities v. Arlington Heights when I was eight years old! At very least, unless and until the Supreme Court overturned the long line of cases approving disparate impact, I was not putting forth a frivolous theory.

Every lawyer expects opposing counsel. What no one told me about was the long line of people receiving money from HUD to promote fair housing who would oppose me. From concerned tongue-clucking from older lawyers to absconding with my clients’ paperwork by a fair housing group (and I phone tirade by its lawyer when I issued a subpoena to get it back), I had my time wasted and my energy depleted (on a case where I charged nothing to get a significant result for more than 50 people, requiring me to effectively give up my income-stream for two years) by those who should be allies. By those who get funding to be allies.

When the motion to dismiss was decided, by a relatively conservative judge, disparate impact was front and center. Rather than the sanctions and ruination of my career that had been prophesied, my disparate impact claim was dismissed—not because it didn’t exist, but because, it is a “method of proof, not a separate cause of action.” Teran v. Wheeling, 13-cv-06509, p. 13 (NDIL 2013) available at, http://law.justia.com/cases/federal/district-courts/illinois/ilndce/1:2013cv06509/287581/48/ My complaint already stated a cause of action for violation of the Fair Housing Act; it did not hinge on disparate impact—a method of proof, not a separate claim.

Likewise, Mr. Forbes Writer, your case about unfair zoning has already been litigated. And won. Fair housing lawyers need only put down their donuts, smell the coffee, and use an evidentiary tool that has been available since I was 8 years old.

Me? I’m enjoying that creamy frosting. I earned it by staying the course in the face of threats, ridicule, and interference with my representation of those most in need.