The Blatch Settlement

The devil famously cavorts in the details, leaving a sloshy trail of offal for the squeamish to tread while picking among the good intentions of the compilers of pertinent details.

I’m thinking suddenly of the so-called Blatch Settlement, an agreement entered into between The Legal Aid Society (“Blatch” on behalf of a class of the disabled in public housing, one of whom was named Blatch) and New York City Housing Authority (“NYCHA”on behalf of the public authority’s right to evict the disabled).   It is as good an example as any of the imperfection of the law.  No surprise, as it’s created and agreed to by necessarily imperfect people.  The result is predictable:  those most affected by it have the least to say about it, the rules are imposed on them by those with the least at stake.   With all that, Blatch is a kind of masterpiece of its kind.  The tasteful marriage of modest, yielding reform and extroverted, stubborn status quo.

A little background:  NYCHA is subsidized housing in New York City. Tenants pay something like 30% of their monthly income to live in these tall, vertical low-income replacements for slum tenements.   The amenities are often not great, there is more crime in NYCHA projects than in the average apartment complex, there is more fear and hostility from the building staff than in your average apartment building.  NYCHA runs the NYC version of the projects.  

NYCHA has many, many buildings.  Hundreds of thousands of low income NYC tenants live in this “housing of last resort.”   When you are evicted from a NYCHA apartment that’s usually the last stop before homelessness or prison.  As they say in the movies: your choice, bitches.

A woman with severe mental problems who lived in a NYCHA apartment in Brooklyn was summoned to court for nonpayment of something like $100 in monthly rent.  She may have missed two months rent when they summoned her to court.  She had been refusing to pay because, among other things, Reagan’s people were leaving cans of human feces in her bathtub.  

The agoraphobic woman did not show up in court.  Since she didn’t appear, nor did anyone show up in her place, a default judgment was entered against her.  Several days later the marshal posted a 72 hour notice of eviction on her door.  

The marshal’s notice is literally the sign for the tenant to rush to court, as they are notified they have a right to on the notice, and have the judge sign an Order to Show Cause which gives them another chance to argue why they should not be evicted:  I have the money, I’m getting the money, I have rats playing cards at my dining room table. Tenants can sometimes get many Orders to Show Cause signed, dragging out evictions for months, or even years.   Landlords naturally hate this and NYCHA hates it too.  

In the case of Eleanor Bumpurs, a large, reclusive NYCHA tenant with a history of emotional disturbance, the marshal, police and armed NYCHA employees came to her door the day of the eviction, in October, 1984, ordering Ms. Bumpurs out.   Here is a great and terrible paragraph from the wikipedia entry on Eleanor Bumpurs describing the wisdom of the city bureaucrats prior to the eviction day:

Four days before the eviction attempt, the city sent a psychiatrist to visit Bumpurs. He concluded that Bumpurs was “psychotic” and “unable to manage her affairs properly” and should be hospitalized. A Social Services supervisor decided that the best way to help Bumpurs was to evict her first, then hospitalize her.[3]

It would be a fateful decision for the tenant.  Ms. Bumpurs did not cooperate. Floridly psychotic people are not known for being cooperative, as even a NYC Social Services supervisor might have known.  Things escalated until eventually the authorities broke down her door, as they had the legal right to, and forcibly tried to subdue the large, hysterical 66 year-old and remove her from the apartment they were seizing, a home no longer hers.  

The story I recall hearing at the time was that, fearing for her life, in a nightgown, she attacked them wielding a large kitchen knife.  She was, according to the men who killed her, threatening their lives at that moment as they tried to force her out of what had been, until recently, her home.  At least one of the men present fired two blasts from his shotgun, the first shattering her knife wielding hand, the second putting nine pellets into her chest, killing her.

e bumpurs 

The City eventually paid a $200,000 settlement to her family.  Meanwhile, the chief judge in NYC formed a commission to figure out how to prevent this kind of horror from happening again.  The solution was the creation of the deeply flawed Guardian Ad Litem (“protector for the suit”)  program.  The judge would appoint a “GAL” to stand in the shoes of a person not able to adequately defend themselves against an eviction attempt.   Initially most of the Housing Court GALs were lawyers, but I believe that presently no GALs are lawyers.  There is no requirement that a GAL be a lawyer, and as time went by, and GALs were treated by the court with less and less respect, and paid a modest flat fee for an often enormous amount of work, sometimes including multiple Orders to Show Cause and a dozen court appearances, it became untenable for lawyers to act as Housing Court GALs.

NYCHA has a zero tolerance policy for tenants.  If they are summoned to a hearing by management and don’t show up, or don’t shape up, the NYCHA administrative judge, two steps later, issues an order to evict them.  They may be hostile and defensive at these hearings, act like animals backed into a corner by indignant NYCHA staff and aggressive NYCHA attorneys (as a group the most reflexively prosecutorial I’ve met), whatever, they get their say, or not, and then a NYCHA judge finds them ineligible to stay in housing of last resort.  

The good news for tenants is that NYCHA has to bring the tenant to court before they can actually get the warrant to legally evict them.  The bad news is that the NYCHA hearing officer’s decision is binding on the NYC Housing Court judge and momentary delay of the eviction is the only play for the Housing judge who finds the tenant unable to defend herself.  

I was called to act as GAL by a very compassionate judge troubled by having to evict a gentle woman of obviously limited intellect who NYCHA found had illegally allowed banned felon children to visit her on three occasions over the course of several years.  Not preventing a visit from a family member with a felony conviction is grounds for eviction under NYCHA’s rules.  In that case I was able to use the NYCHA hearing officer’s comment that she appeared to be a “nice, gentle woman” (“who happened to raise three felons”– which I left off) as a lever to pry the administrative case back open.  I asked to be appointed as her GAL in the administrative hearing as well as the court proceeding.  

The NYCHA hearing officer later noted to me that it had been a mistake to write that the tenant seemed nice.  He pointed out that the second half of that sentence pointedly referred to her children, the felons, but admitted he’d been foolish to include a reference to what a sympathetic and harmless seeming old woman she was.  The law is the law, and eviction is the punishment for disobeying a clear NYCHA mandate.

In perhaps my finest moment as a lawyer (a moment extended over the course of over a year), I managed to get the charges against her dismissed by NYCHA and her case in Housing Court dismissed.  It was the result of more than a hundred hours of hard, and at times inspired, work, including forensic investigation and vigorous cross-examination of NYCHA personnel.  

The post-hearing pages I reserved the right to submit, wrote and sent to the hearing officer were, without a doubt, the most persuasively argued pages of my legal career.  I was paid the statutory $600 to help this helpless and likable woman avoid eviction.  That comes out to less than $6 an hour for my legal work, once you do the long division.

Her final NYCHA administrative hearing was not very long before my mother died, and as we stood outside the hearing room, feeling we had quite possibly won – or at least put up a hell of a good fight–  the tenant I eventually saved from eviction told me how sorry she was to hear that I was losing my mother.

“Your mother must be a great person to have raised a son like you,” she told me as I shook her hand the last time we saw each other.

This, clearly, was a rare and exceptional case.  More common was a hard kick in the ass from an overworked and frustrated judge with no dog handy to boot.

The Blatch Settlement was a hard-negotiated agreement that in a case where NYCHA knew the tenant was disabled, or unable to adequately defend herself, NYCHA had a duty to inform the NYCHA administrators and the Housing Court that the tenant required the services of a Guardian Ad Litem.  It required the appointment of a GAL in such cases.  So now the tenant who can’t speak for herself has someone at the table who can.  A great step forward, no?

Except that there is nothing in the Blatch settlement forcing NYCHA to do this, no real consequence for NYCHA’s failure to do it, except that it’s easier now for a non-attorney GAL in Housing Court, if he knows about Blatch, to have the case of a disabled tenant slated for eviction after a one-sided administrative ordeal without a GAL, sent back to NYCHA for a new hearing with a GAL.  Then back to Housing Court, and here we go loop de loo.  

If the tenant had a GAL at the administrative hearing, and NYCHA does not inform the judge in Housing Court of this fact, as unambiguously required by Blatch: no harm, no foul.  The judge merely delays the proceeding and appoints a GAL.

Of course, I know the real problem here.  It has more to do with my own contemptibly naive belief in some twisted version of justice, with what SHOULD be, than with any law.  I suppose I get this from my father, and it’s fitting, in a way, to wake up thinking about the Blatch Settlement on Father’s Day.  Do I really, in my heart of hearts, imagine that, as a group, the descendants of people who were once legally sold, raped, killed for disobedience, forced to work virtually unpaid and lynched in many states for a century after slavery was abolished, are going to be given anything like a fair shake by the legal system, even in this exceptional nation, the land of the free and the home of the brave?  

I can see my father’s knowing smirk.  

As my grandmother would say in answer to such a question:  “please….” turning her face away with a big, dismissive wave of her thick, expressive hand.

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