Velazquez Articles

NLADA Update, Volume 1, No. 1
January 14, 1999

U.S. Court of Appeals Rules in Velazquez v. LSC

On January 7, 1999, the U.S. Court of Appeals for the Second Circuit ruled in Velazquez v. LSC, a case that had challenged the 1996 Congressional restrictions on LSC recipients and the LSC regulations implementing them. A three-judge panel generally rejected the plaintiffs’ challenges, affirming the district court’s denial of a preliminary injunction against the application of the restrictions to recipient’s non-LSC funds.

However, the Court did enjoin the operation of the exception to the welfare reform restriction that permits individual representation of clients in welfare matters only when there is no challenge to existing law. The Court held that the “existing law” exception was unconstitutional viewpoint-based discrimination. A detailed analysis is enclosed.

In a related case, on November 30, 1998, the Supreme Court refused to grant certiorari in Legal Aid of Hawaii v, LSC, the Ninth Circuit case that had challenged the application of the LSC restrictions to recipients non-LSC funds. Like the Second Circuit in Velazquez, the Ninth Circuit found that the LSC restrictions on non-LSC funds were constitutional, but the Ninth Circuit did not address the issue of viewpoint discrimination raised in Velazquez.


NLADA Update, Volume 2, No. 8
June 8, 2000

Supreme Court Sets Briefing Schedule For Consideration of Velazquez Case

The United States Supreme Court has established a briefing schedule for its consideration of the appeal of the Legal Services Corporation in the case of Legal Services Corporation v. Carmen Velazquez et al.

The case is before the Supreme Court upon petition by LSC regarding one part of the decision in the Second Circuit in a case brought by a number of current and former staff attorneys from Legal Services of New York, several of their eligible clients, private contributors to legal services programs, and state and local officials whose governments provide public funds to support legal services.

The suit alleged that the 1995 congressional restrictions on LSC funding violated the plaintiffs' First, Fifth and Tenth Amendment rights under the Constitution, as well as the Separation of Powers doctrine. The Second Circuit followed the Ninth Circuit in the Legal Aid Society of Hawaii v. LSC in finding that most of the restrictions on LSC and non-LSC funds were constitutional.

However, the Second Circuit decision did find one of the restrictions -- prohibiting LSC-funded lawyers from challenging existing welfare reform statutes or regulations in the context of representing an individual under the “suit for benefits” exception to the restriction -- to be unconstitutional viewpoint discrimination under the First Amendment, since it describes a category of arguments that cannot be raised rather than cases that can’t be brought.

Given that the Second Circuit decision created a split in the Circuits on that issue, the Supreme Court granted cert on this particular point alone upon LSC’s petition in early April. The plaintiff's motion for certiorari before the Supreme Court on its constitutional claims is still pending.

The LSC brief is due June 9, and the respondent's brief is due on July 10. LSC's reply brief would then be due on August 9. The timing of the Supreme Court argument is currently unknown.


NLADA Update, Volume 2, No. 13
August 9, 2000

NLADA FILES SUPREME COURT AMICUS BRIEF IN VELAZQUEZ CASE

On July 17, NLADA joined the American Civil Liberties Union, the National Coalition Against Censorship and the Center for Constitutional Rights in filing an amicus brief in the United States Supreme Court in the case of LSC v. Velazquez. The brief, which was filed in support of the plaintiffs in a lawsuit brought to challenge the 1996 LSC appropriations act restrictions, specifically addressed the constitutionality of the exception to the welfare reform restriction that permits LSC recipients to bring welfare cases on behalf of individuals seeking relief from welfare agencies as long as they do not “involve an effort to amend or otherwise challenge existing law…” (the so-called “suit for benefits exception.”) The Court of Appeals for the Second Circuit had upheld the LSC restrictions generally, but ruled that the suit-for-benefits exception was viewpoint discrimination, violating the First Amendment guarantee of free speech. The Supreme Court is hearing the case after granting a petition for certiorari by the United States and LSC to address the narrow question of the constitutionality of the exception.

The brief addresses the issue of whether Congress may constitutionally override the professional judgment of lawyers employed in LSC-funded programs by prohibiting them from challenging existing welfare laws and regulations, even if the client’s best interests would be served and the lawyer’s work is supported by non-LSC funds. Among other things, amici contend in their brief that LSC-funded lawyers who are suing the government in a welfare case are speaking on behalf of their clients, rather than on behalf of the government, as distinguished from Rust v. Sullivan, the case where the Title X program at issue was speaking on behalf of the government in providing family planning services and information. The brief argues that Congress cannot burden the attorney-client elationship with restrictions on court room advocacy that amount to viewpoint discrimination in a traditional sphere of free expression. Congress has chosen to fund welfare cases for individuals and may not dictate the arguments that a legal services program may make on behalf of a client. In addition, the brief argues again that, even if the exception does not constitute viewpoint discrimination, the restrictions on the use of private funds would violate the unconstitutional conditions doctrine, and are not sufficiently narrowly tailored in pursuit of substantial government interests when First Amendment rights are at stake.

The case will be argued sometime during the Supreme Court term that will begin this October and will likely be decided before the end of the term in June 2001. The Update will keep you apprised of additional developments as they occur.


NLADA Update, Volume 2, No. 16
October 17, 2000

Velazquez v. LSC Argued Before Supreme Court

Velazquez v. LSC, on appeal from the U.S. Court of Appeals for the Second Circuit, was argued before the Supreme Court on October 4. The case raises the question of whether the exception to the welfare reform advocacy restriction contained in the LSC appropriations act amounts to unconstitutional viewpoint discrimination. Attorneys representing petitioner LSC and the U.S. government split the LSC argument in defense of the restriction. They argued that the restriction is constitutional within the confines of Rust v. Sullivan and does not amount to viewpoint discrimination within a public forum as defined in Rosenberger v. Rector and Visitors of University of Virginia. The attorney for the respondents argued that the restriction constitutes viewpoint discrimination in that it prohibits a particular point of view – that a welfare provision is unconstitutional — from being raised in a public forum. He argued that Rust could be distinguished from the matter at bar and that the analysis in Rosenberger should control. A decision in the case is expected by early next spring.

This summer, NLADA filed an amicus brief in the U.S. Supreme Court in support of the plaintiff in a lawsuit brought to challenge the 1996 LSC appropriations act restrictions specifically addressing the constitutionality of the exception to the welfare reform restriction that permits LSC recipients to bring welfare cases on behalf of individuals seeking relief from welfare agencies as long as they do not “involve an effort to amend or otherwise challenge existing law…” The brief was filed jointly with the ACLU, the National Coalition Against Censorship and the Center for Consitutional Rights.


NLADA Update, Volume 3, No. 5
March 5, 2001

SUPREME COURT AFFIRMS 2nd CIRCUIT DECISION IN VELAZQUEZ

On Wednesday, February 28, the U.S. Supreme Court issued a decision in the case of LSC v. Velazquez. In a 5-4 decision, the Court affirmed the Second Circuit’s opinion in the case and invalidated the LSC Appropriations Act provision permitting representation in individual welfare cases only when the cases do not involve a challenge to existing law. The Court found that the provision violated the First Amendment because it represented unlawful viewpoint-based discrimination. Justice Kennedy, who was joined by Justices Stevens, Souter, Ginsburg and Breyer, authored the majority opinion. Justice Scalia wrote the dissent, joined by Chief Justice Rehnquist and Justices O’Connor and Thomas.

The Velazquez case had challenged many of the restrictions imposed on LSC recipients by Congress as part of the 1996 appropriations process. The Court of Appeals for the Second Circuit rejected the plaintiffs’ challenges to most of the restrictions, but enjoined enforcement by LSC of the proviso to the welfare reform restriction that limited representation in individual welfare cases that seek to obtain, preserve or increase welfare benefits to those that did not involve statutory or constitutional challenges to xisting law. The Court of Appeals determined that this provision constituted impermissible viewpoint discrimination that violated the First Amendment to the U.S. Constitution, finding that it “clearly seeks to discourage challenges to the status quo.” This ruling was only applicable to LSC programs in the Second Circuit.

The Supreme Court agreed with the Court of Appeals and affirmed its decision invalidating the provision that prohibited individual challenges to existing welfare law. The Court’s decision does not strike down the restriction on welfare reform lobbying, rulemaking or litigation, but does permit challenges to the legality or constitutionality of welfare laws or regulations when they are brought in the context of an individual’s case against a welfare agency.

The Supreme Court declined to address the issue of severability, in effect confirming the Second Circuit’s conclusion that it was permissible to strike down the provision, while leaving intact the statute’s general restrictions on lobbying, rulemaking and litigation on welfare reform, but permitting unrestricted individual representation in welfare cases.

The Supreme Court distinguished the Velazquez case from Rust v. Sullivan, upon which LSC relied. In Rust the Supreme Court had upheld regulations prohibiting doctors funded under the program from counseling patients with regard to abortion. The Court in the Velazquez decision noted that the abortion counseling activities at issue in Rust case involved limitations on speech funded to convey a government message, which Congress has wide latitude to restrict. In contrast, Velazquez involved a subsidized program to facilitate private speech by LSC attorneys on behalf of their clients in their claims against the government in welfare cases. The Court determined that the provision limiting welfare representation to cases where existing law was not challenged impermissibly imposed view-point based discrimination that violated the First Amendment, and distorted the legal system by limiting the arguments that legal services lawyers can make and altering the traditional role of attorneys as advocates for their client’s interest. “By seeking to prohibit the analysis of certain legal issues and truncate presentation to the courts, the enactment under review prohibits speech and expression upon which courts must depend for the proper exercise of judicial power.”

The Court also acknowledged that indigent clients generally have no alternative channels for expression of the views prohibited by the provision at issue. If legal services attorneys are forced to limit their advocacy on behalf of their clients or to withdraw from representation if it is necessary to challenge the constitutionality of an existing welfare statute or legality of an existing welfare regulation, eligible clients are often left without alternative advocacy. “The Constitution does not permit the Government to confine litigants and their attorneys in this manner. We must be vigilant when Congress imposes rules and conditions that in effect insulate its own laws from legitimate judicial challenge. Where private speech is involved, even Congress’ antecedent funding decision cannot be aimed at the suppression of ideas thought inimical to the Government’s own interest.”

In his strongly worded dissent, Justice Scalia rejects the reasoning and conclusions of the majority, and derides its decision not to address the issue of whether the invalidated provision can be severed from the remaining section of the appropriations act. The dissent argues that Velazquez is indistinguishable from Rust, and denigrates the holdings of the majority on a wide variety of issues. Justice Scalia concludes his discussion of the majority opinion by making “…a point that is embarrassingly simple. The LSC subsidy neither prevents anyone from speaking nor coerces anyone to change speech, and is indistinguishable in all relevant respects from the subsidy upheld in Rust v. Sullivan…. There is no legitimate basis for declaring 504(a)(16) facially unconstitutional.”

Justice Scalia also concludes that the Court abused its discretion by ignoring the issue of severability, stating that the Court had an obligation to address the issue even though the parties did not brief it. In Justice Scalia’s view, without the restriction on cases that challenge existing law, Congress would not have included the proviso that permits LSC attorneys to bring welfare cases for individuals.

NLADA, which participated as amicus curiae before the Supreme Court, would like to acknowledge the outstanding job by the Brennan Center (counsel for the plaintiffs) and particularly Burt Neuborne, who argued the case.


NLADA Cornerstone Volume 23 No. 1
Spring 2001

"The Supreme Court decision in Velazquez v. LSC is good news for legal aid clients. It means that their individual redress in the courts may be pursued with the same vigor as that available to clients who have the means to compensate their attorneys. It is also good news for those who represent the clients. At least in this situation of individual representation in welfare cases they will not be restricted in the arguments they may make, thus reducing them to second class advocates. NLADA applauds the original reasoning of the Second Circuit and the subsequent decision of the Supreme Court. We also heartily commend our allies who fought so hard on behalf of this cause."

-NLADA President and CEO Clint Lyons