Legal Aid Advocacy in West Virginia

1. Legal Aid Advocacy in West Virginia Past & Present

2. The Beginnings • 1952 – Veterans from WWII, who attended law school on GI Bill, founded what later became the Legal Aid Society of Charleston. • Initially an all-volunteer effort, in which local attorneys would meet with low income people after the regular work day, to give advice and assistance. • In the 1960’s began receiving funding through LBJ’s new War on Poverty, through the Office of Economic Opportunity (OEO). Hired first full-time staff.

3. Legal aid lawyers who became judges • Larry Starcher, WV Supreme Court; Circuit Court Monongalia; • Irene Berger, Southern District of WV • Ron Pearson, Bankruptcy Court for SD WV • Herman Canady, Circuit Court Kanawha • Andrew MacQueen, Circuit Court Kanawha • Mary Ellen Griffith, Family Court Mercer & McDowell • Patricia Keller, Family Court Cabell • Mike Kelly, Family Court Kanawha • Randal Minor, Family Court Monongalia & Preston • Sharon Mullens, Family Court Kanawha • David Sanders, Family Court Greenbrier • Mark Snyder, Family Court Kanawha • William Wertman, Family Court Berkeley

4. 1969 brought major steps forward • Founding of Appalachian Research & Defense Fund, Inc, a community organizing and citizens advocacy group stretching across the coalfields of both Kentucky and West Virginia. • Originally legal advocacy was a small part of Appalred’s mission, but grew over time. In the early 1970s the organization split into separate entities in the two states • Founding of North Central West Virginia Legal Aid Society, by Larry Starcher. Served 6 to 8 county region.

5. The Legal Services Corporation Act of 1974 • The last legislation signed by Richard Nixon before his resignation. • Founding of the West Virginia Legal Services Plan, designed to cover the vast reaches of the state not already served by Appalred, LASC, & NCWVLAS. • In 1981 achieved high-water mark of federal funding for legal services. At that time there were some 75 legal aid lawyers in West Virginia

6. The “Steel City” cases – 1960s & 1970s • Roofing/siding scammers from Pittsburgh, preyed on homeowners (mostly illiterate miners) in north central WV to get contracts for work, which included liens on property to secure payment. Did shoddy work, or none at all, but the original contractor always promptly sold the lien on to other entities. One or two years later those entities sued to foreclose on the liens, and asserted the UCC “Holder in Due Course” doctrine to say they were not responsible for the sins of the scammers. • Led directly to passage of the WV Consumer Credit & Protection Act of 1974, WV Code 46A-1-101 et.seq., which (among many other protections) abrogated the Holder in Due Course doctrine with regard to consumer debts.

7. Major Cases over the Years

8. Significant Cases Over the Years (Chronological order) • Due Process in Judicial System • Due Process in Administrative Agency Hearings • State ex. Rel. Payne v. Walden, 156 W.Va. 60, 190 S.E.2d 770 (1972). Pre-judgment, pre-hearing attachment seizing property of alleged debtor prior to trial ruled unconstitutional deprivation of property without Due Process of Law. Applied Goldberg v. Kelly US Supreme Court ruling. • Opal Miller v. Commissioner, Civil No. 74-390 CH (SDWV 1978). Applying Goldberg v. Kelly to assure Due Process protections in conduct of administrative hearings by the Department of Welfare

9. Significant Cases • Landlord/Tenant: Warranty of Habitability • Education: Property tax financing • Equal and Uniform Taxation (Mineral Interests) • Teller v. McCoy, 253 S.E.2d 114 (1979). Establishing the Warranty of Habitability protection for tenants in West Virginia. • Pauley v. Kelly, 255 S.E.2d 859 (1979)Exclusive reliance on property tax financing of public schools violated WV Constitution’s guarantee of “thorough and efficient system of free schools” because poorest counties could not provide an adequate education. • Tug Valley Recovery Cntr v. Mingo CntyComm’n, 164 W.Va. 94 (1979). Mineral interests vastly undervalued in relation to other forms of property potentially violated constitutional requirement of equal and uniform taxation. Taxpayers have standing to contest assessment of property taxation. • Led to constitutional amendment titled ‘Property Tax Limitation & Homestead Exemption Act of 1982’ limiting the effects of this case.

10. Significant Cases • Mental Health institutions • Mental Health treatment • E.H. v. Matin(“Hartley”), 284 S.E.2d 2332 (1981). “Once again this Court’s attention must be focused on the ‘Dickensian Squalor of unconscionable magnitudes’ of West Virginia’s mental institutions.” Ruled that patients were being confined under conditions which violated the right to ‘humane custody and therapeutic treatment’ • Medley v. Willis-Miller, Civil Action No. 78-2099 CH (SDWV 1981). Establishing right of mental health patients to appropriate treatment, free from violation of civil rights; and need for independent ‘patient advocates’ to assist patients in asserting their rights. • Led eventually to establishment of the Behavioral Health Advocacy Program, now operated by LAWV

11. Significant Cases • Trial rights in Summary Eviction Process • Handling of Discrimination Complaints • Penitentiary Conditions • Criss v. Salvation Army, 319 S.E.2d 403 (1984). Right of defendant tenants to jury trial, civil discovery process, and reasonable time to defend summary eviction actions under new “Wrongful Occupation” statute. • Allen v. State Human Rights Commission, 174 W.Va. 139 (1984). Right to timely processing of thousands of backlogged HRC complaints. • Crain v. Bordenkircher, 342 S.E.2d 422 (1986). Conditions in former Moundsville penitentiary were unconstitutional; upheld by Supreme Court in this decision in 1986. Ultimately led to construction of new penitentiary.

12. Significant Cases • County Jail Systems • School Clothing Vouchers • Welfare Department backlogs • Other county jail conditions suits, all across the state. Ultimately led to creation of the Regional Jail System. • Lorraine Good & Sherry Brock (SDWV 1987). Enjoined USDA from counting DHHR once-a-year “school clothing vouchers” as income which would reduce family’s allotment of Food Stamps for that month. • Benjamin H. (2000 – Circuit Court of Kanawha County) Timely processing of MR/DD Medicaid Waiver in-home services applications, to eliminate backlog and waiting list.

13. Mountain State Justice • Mountain State Justice was spun off in 1996 to continue the work that would otherwise be prohibited by new LSC restrictions on class actions, attorney fees, lobbying, etc. • Continued monitoring and oversight of Hartley & Medley Consent Decree implementation; • Including recent work to extend coverage of MR/DD Medicaid Waiver Program services to individuals with “Traumatic Brain Injury (TBI).” • Primary force attacking Predatory Lending in WV, and doing Foreclosure Defense. • Handled class cases for issues arising from Aged & Disabled Medicaid Waiver Program, and MR/DD Medicaid Waiver Program.

14. 1996 and Welfare Reform • Elizabeth Wehner – SkaddenArps Fellowship to focus on issues arising from welfare reform legislation • Training and education for legal aid staff • Major work with “WV Welfare Reform Coalition” and “Making Connections Work” groups in educating client community • Federal court case that excluded SSI income for children and mentally disabled recipients from being counted as “household income” of family members receiving TANF.

15. Aged & Disabled Medicaid Waiver cases2004 to present • An overbroad effort by DHHR to correct its own errors, leading to widespread incorrect terminations of eligibility. • In late 2004 and early 2005 DHHR began cutting off hundreds of elderly and disabled citizens who were on the “AD Medicaid Waiver” program. This program provides several hours a week of chore and supportive services in their homes, which allows them to avoid having to enter a nursing home. • Statewide effort to educate ourselves on the issues; work with the “case management agencies” that coordinated services to client; begin handling the hundreds of cases around the state; and work with Mountain State Justice to refer issues requiring class action scope of attention.

16. Aged & Disabled Medicaid Waiver cases2004 to present • Cyrus v. Walker, Civil Action 04-0982 (SDWV 2005). Required DHHR to comprehensively revise the procedures for assessing individual cases; provide more notice and time for affected individuals; for recipients with cognitive disabilities, assure presence of legal representatives during assessment. • Fleshman v. Walker, Civil Action No. 06-C-1301 (Kanawha Circuit Court 2006). Finding DHHR was using improper eligibility criteria, and requiring Department to revert to pre-2005 assessment criteria and protol.

17. Recent Supreme Court cases • Thomas v. Morris, 687 S.E.2d 760 (2009). DVP respondent who banged on doors and windows, shouted, blocked driveway, and remained on premises for hours, committed “holding, confining, detaining” as defined by 48-27-202(5). • Galloway v. Galloway, 685 S.E.2d 245 (2009). Family Court properly denied putative father’s request to deny paternity even though guardian ad litem did not strictly follow prescribed duties. • Wysong v. Walker, 686 S.E.2d 219 (2009). On certiorari appeal of MR/DD Medicaid Waiver application case, Circuit Court not required to defer to decision of the State Hearing Officer; affirming Circuit Court’s reversal and award of benefits.

18. Recent Supreme Court cases • LAWV v. Walker (2008). Petition for mandamus and prohibition, alleging DHHR Income Maintenance regulations were not properly filed with Secretary of State and did not comply with statutory requirements for format and numbering, all of which made them both incomprehensible and impossible to determine what rules were in effect or superceded. Settled by agreement. • Ashleigh Jurkovich and Rhonda Bay (2011). Addressed how magistrate court should handle fee waiver requests for appeal to Circuit Court. Additional issue of tenant right to maintain possession during appeal was mooted during pendency of case, so not addressed by decision. • Buffington v. Johnson (2011). Circuit Court ruled against tenants without permitting them the opportunity to present evidence. Settled by negotiation, so no Supreme Court ruling.

19. 2011 Pending Supreme Court Cases • Benjamin H. v DHHR (Same client as in 2000 case dealing with long waiting lists. Ten years later DHHR trying to cut him from the program.) LAWV won Circuit Court ruling that DHHR could not cut someone off unless it showed “substantial improvement” in his condition. • J.S. & R.B. v. Hardy (DHHR). DHHR failure to apply federal EPSDT Medicaid eligibility standards when deciding coverage of powered wheelchairs for two teenage boys with cerebral palsy. • Bills v. Hardy (DHHR) Individual appeal of denial of eligibility for MR/DD Medicaid Waiver Program to provide in-home care to autistic child. • ?? (I don’t know the name). Individual appeal from Family Court case addressing Termination of Parental Rights. Mark Toor.

20. Tens of Thousands of Individual Cases • Do not let this focus on “major” cases diminish the impact legal aid in WV has had on tens of thousands of households over the decades. • An ‘individual case’ led to a $60,000 judgment against a landlord in Cabell County by Nancy Brewer • Individual cases helped thousands of DV victims escape their violence, and begin to build safer better lives for their families. • Individual cases helped thousands of West Virginians get unemployment benefits when they were jobless; shelter when they were homeless; medical services when they were sick.

21. WVLong Term Care Regional Ombudsman Program • Funded by federal Older Americans Act, originally operated through “Area Agencies on Aging” from mid-1970s through 1980s. • Because of massive ineffectiveness in the Charleston agency, former Legal Aid Society of Charleston bid for and won contract to provide Ombudsman services in 4 county region starting 1987. • North Central WV Legal Aid soon followed, and provided services in that region. • In 1991 LASC was given contract to provide Ombudsman services throughout the entire state, in cooperation with the other legal aid programs at the time. • The present State Ombudsman previously was LAWV attorney and counsel to the Regional Ombudsman Program

22. Behavioral Health Advocacy Program • The Medley case from 1981 established a need for “independent” advocates to assist mental health patients in asserting their legal rights while in state mental hospital custody. Initially these “advocates” were hired by and supervised the administrator of the hospital where they worked. • In late 1980s the Court Monitor decided that wasn’t working well, and asked legal aid to run the facility advocacy program. • Subsequently, the state has provided additional funding for mental health advocacy services “in the community,” not just inside the in-patient hospitals. • LAWV now operates the statewide Behavioral Health Advocacy Program.

23. “ “Seeking Justice, Changing Lives.” You may sometimes lose sight of it in the daily whirlwind of work, clients, judges, opposing advocates, bureaucratic agencies, too many meetings that run for too long, too many committees that seem endless, list serves generating too much email, and on and on. But this is what we do. You are part of a proud tradition of making life better for West Virginia’s most vulnerable citizens.

24. 1995 Congressional Testimony of Nate BowlesBowles, Rice, McDavid, Graff & LoveChair of LASC Board of Directors; Later Chair of LAWV Board of Directors “The phrase ‘Equal Justice For All’ should not be an empty one. Our country has a government and a legal system grounded on the equal importance of every citizen. Even school children can repeat our credo that no one is above the law, but we must also assure that no one is beneath the law.” So Welcome to Legal Aid of West Virginia, good luck, go forth, and do some justice!!