Amy Boardman. Texas Lawyer. November 20, 1989. Vol.5, No. 35
Martin Golman raises his voice when he speaks about the homeless.
He ticks off statistics like an expert and rails about the indignities suffered by the homeless at the hands of an uncaring society.
“We’ve got to take care of our own.” says Golman, a manager at a wholesale liquor and wine distributor. “It’s not up to only the city or the county. It’s up to every individual in the community.”
He didn’t feel this way about a month ago, nor was he concerned about the steady stream of homeless foot traffic near his downtown office that sits a block or so away from a soup kitchen.
But that was before he became a member of the jury in a class-action suit on behalf of Dallas’ homeless- a jury that found Dallas County is violating a 19th century state statute requiring public support for the poor.
And now, after an almost two-week trial and an Oct. 26 verdict that declared the county’s general assistance program inadequate, Golman, the foreman of the seven-man, five-woman jury and an acknowledged conservative, talks like a man converted. He and his wife, he says, are ready to spend between $5000 and $10000 in aid to the homeless.
Golman’s newfound personal commitment seems to please lead plaintiffs’ counsel Joe K. Crews more than the verdict itself, which, because of the county’s predictable opposition to its financial implications, is not not much more than an academic answer to a legal question.
There are still countless men, women, and children competing for space for the night on a concrete floor at the Austin Street Shelter just a few blocks from Crews’ downtown office. And the county, despite a verdict that says it is legally bound to do more, isn’t exactly rushing to their aid.
“We would prefer not ever to have been involved in this thing,” said Crews, name partner in the Dallas’ Crews, Thorpe & Hatcher. Though Crews received some advice and assistance from other lawyers and groups- particularly Legal Services of North Texas’ Josephine Dye- the homeless suit was largely a solo, pro bono effort by Crews, a personal injury plaintiffs’ lawyer.
Since his court victory, he said, he has heard from lawyers in El Paso, Houston, Austin, San Antonio, Fort Worth, Senton and Bastrop- all of whom are looking to file suits in their hometown.
Unfortunately for the homeless, said a Washington-based homeless advocate, court decisions don’t always pull a lot of weight in the real world.
“I’m sure it’s made a difference,” said Maria Foscarinis, executive director of the National Law Center for Homelessness and Poverty in Washington, D.C. Although unfamiliar with the Dallas suit, she said it appears to resemble two successful suits filed against New York and West Virginia on behalf of the needy.
“These court victories have been very important in providing some relief,” Foscarinis said Nov. 13. “The problem is they’ve not gone nearly as far as they need to provide real relief.”
At this strange of the Dallas case, it’s not certain what relief will eventually trickle down to the the homeless.
For Crews’ part, he said he wants the county to revamp the assistance program to include more people than it now does and, in the long-term, to persuade the county to make a commitment to low-income housing. Those issues will likely come out during the remedies phase of the trial, which has yet to be set. The Oct. 26 verdict addressed only the county’s liability.
“We want to sit down with the county, work something out beginning immediately so that we can start saving some lives this winter,” he said.
“To hell with the legal issues.”
But, he said,that rosy scenario isn’t likely.
“It doesn’t look good. As a lawyer, I’ve learned to be relatively pessimistic,” Crews said. “If a conservative Dallas County jury can do what they did, it seems to me that the county commissioners shouldn’t be far behind.”
But the county, which has publicly complained that its counsel was deficient and has hired new attorneys to take over the case, maintains it is living up to its statutory responsibility to care for “paupers,” in the words of the 19th century law on which Crews based the suit, Phillip M. Hughes, et al. v. County of Dallas, Texas, et al., No. 87-2124-J.
The law, article 2351(6) of the civil statutes, states that the commissioners court shall provide “for the support of paupers and such idiots and lunatics as cannot be admitted into the lunatic asylum, residents of their county, who are unable to support themselves.”
The county hinged its defense on the last clause- “who are unable to support themselves”- and interpreted the law to mean that only those with mental or physical disabilities are eligible for aid under its general assistance program.
Crews countered with testimony from experts on the homeless who said the stress of homelessness can render an otherwise healthy person disabled.
“Most homeless people that die of homelessness do not die of hypothermia or starvation,” Robert Hayes, founder of the National Coalition for the Homeless and special counsel in the New York office of Los Angeles’ O’Melveny & Myers, said in an Oct. 6 deposition. “Invariably, they die of wearing out.”
FROM DEFENSE DREAM TO DEFENSE NIGHTMARE
Made up mostly of men and women from affluent north Dallas and the suburbs, the jury initially was the defense’s dream: homemakers and business people Crews assumed couldn’t care less about the homeless.
“Scary,” he called them.
“People all over the country [said] ‘What the hell are you doing? This is insane. You don’t submit these issues to a jury, particularly not in Dallas County,’” he said.
But the jury did more than hand him a victory. Like Golman, they also became acutely aware of the plight of the indigents.
“I think all 12 of us, after what we sat through, had an altogether different viewpoint at the end of it,” said juror Carol Thies, a Farmers Branch homemaker. “We all just realized that it isn’t just the winos. It could be any one of us, given certain circumstances.
“It really makes you want to do something more,” she said.
“Even the good old boys said they couldn’t believe… how insufficiently these people were being taken care of,” said Golman, adding that he and most of the jurors were unsympathetic to the homeless before the trial.
“I didn’t know, I didn’t care,” he said. “I thought that most of them were people who did not care to work.”
Crews said the jurors he has spoken with since the trial- people he said thought that homeless people were “a bunch of bums” before the trial- are now asking him, “‘Where can I send money, who can I contact, how can I volunteer my time?’”
Part of the plaintiffs’ victory could stem from what jurors saw as the county’s apparently lackadaisical attitude toward the suit.
The county presented only one live witness, Caroline Blackburn, director of the county’s assistance program. The rest of the defense testimony- including that from County Judge Lee Jackson and the four county commissioners- was read to the jury from transcripts of depositions.
“Maybe they could have thought it was important enough to come in person,” Theis said. “we listened to the depositions… but I still think if they had been there in person, it might have meant more.”
Another juror, Dallas pharmacist Michael Chappell, agreed.
“It was just clear to me that Mr. Crews had done a lot of background work on it and [Assistant District Attorney Thomas] Keever didn’t seem to have as much background work with him,” Chappell said. “He just didn’t have the air of being real concerned.”
‘THEY STILL DON’T WANT TO BELIEVE IT’
Crews blames the county commissioners, who, he said, “did not take this case very seriously.”
“They didn’t think that there was any possible way that this was going to happen- and they still don’t want to believe it.”
County Judge Jackson admits the county was “overconfident” that it would win the suit because, he said, the law was so clearly in its favor.
“We felt that the law and the history of the past hundred years would be very clear,” Jackson said Nov. 13. “In that sense, Dallas County was overconfident that the law was clear and that our own program was well thought out and more than adequate.
“In retrospect, we obviously were mistaken.”
County officials’ attitude handicapped Keever’s ability to defend them, Crews said.
“His client didn’t authorize him to do things that could have been done,” he said.
Keever disagreed, saying the county was cooperative and supportive. Live testimony from the commissioners would not have helped the case, he said.
“I didn’t think it was needed,” he said. “They had other duties.”
The verdict “obviously could be easily explained by some folks as a sympathy verdict,” Keever said.
Jackson also defended the commissioners’ lack of personal appearances, saying they didn’t expect Crews to present such an emotional case, which included a videotape on a day in the life of the homeless and live testimony from members of the county’s homeless community.
“Our entire case was based on the assumption that we had the advantage of the law on our side and that the other side had to grasp for emotional appeals that weren’t really relevant and probably the strongest arguments that they had.
“As it turned out, they obviously did have some strength,” he said.
Members of the commissioners court publicly have criticized the way the case was handled and have hired Dallas’ Strasburger & Price and Austin’s James Allison, of Allison & Associates, to take over the suit. Keever will remain on the case.
“We didn’t have representation,” county Commissioner John WiIley Price said Nov. 14. “I don’t think we were very prepared to go forward on the case. There was a lot of evidence we could not admit because we did not give it to the plaintiffs’ attorney in a timely manner.
“I think there’s just a lot of evidence that was not put forth, so I’ve got a real problem with that,” Price said.
Jackson was more demure in his criticism of Keever.
“Dallas County can either blame the jury for making mistakes or we can assume that we didn’t give the jury enough information,” he said. “I prefer to thin the jury worked hard and intended well but obviously didn’t have as much information before them as we could have given them.
“It’s not anyone’s fault in particular because the law seems so clear to us,” he said.
Keever wouldn’t comment specifically on the commissioners’ criticisms. But, he said, “No one ever tries a perfect case as far as I’m aware of. So I’m sure there are improvements that could have been made.”
COUNTY: EXISTING PROGRAM IS ENOUGH
Despite the verdict, the county maintains that its assistance program complies with the state law, even if, as the plaintiffs testified, being homeless can render a person disabled.
“If that were true, all they needed to do was get a physician’s certificate and they could qualify under our present program,” he said. “We’ve never tried to take the position that all the needs of homeless are ever met… We do feel that we have fulfilled our requirements under the law.”
In the fiscal year ending Sept. 30, the county spent $1.9 million on its assistance program, which is designed to provide emergency assistance to people who are unable to work because of a physical or mental disability, said Blackburn, with the county’s human services department.
Jackson said that if the county’s goal “had been to do as little as possible, we could be spending less than a million and a half dollars” on the program.”
Crews contends, though, that few, if any, needs of the homeless are being met by the county. In fact, some of the county’s criteria systematically disqualify the homeless. In order to qualify for food assistance, the applicant must have cooking utensils and a place to store the food. And to qualify for rental assistance, one must be no further than 30 days behind in rent, which Crews said assumes that the applicant already has housing.
While Blackburn admits the assistance program does set those eligibility requirements, the county also has a program that supplies room and board for people who don’t already have it, and currently does so for about 450 individuals or families a night, she said.
That fact, she said, was never brought out at the trial.
“Being homeless is not a criteria for assistance, nor does it deny them assistance,” she said. “We care about these people, and that never seemed to come out.”
Blackburn said the county used to assist people who weren’t mentally or physically disabled, but eliminated that program in June.
The county stopped the aid because , although its funding was limited to 7 percent of the total financial assistance budget, it accounted for 40 percent of the county’s assistance applications and overworked the already strained staff, she said. Also, Blackburn added, the eligibility requirements were too vague.
“People didn’t know who we would help,” she said. “We didn’t even know. It was hard… We absolutely worked ourselves to death for that little teeny line item.”
Blackburn admits the timing of the program’s elimination, just a few months before the suit went to trial, was less than ideal, but she said the decision to ax it was made independent of- and actually despite- the suit.
“We tried not to do anything solely because of the suit,” she said. “We were carrying out what we thought was our job.”
‘THEY JUST… STIRRED MY HEART’
Crews filed the suit in 1987 after his first foray into a homeless shelter.
He had heard that Hayes, then with the National Coalition for the Homeless, was coming to Dallas and would be at the Austin Street Shelter, a place Hayes calls “one of the more poignant pictures of America.”
“Lining up hours before the shelter opened were scores of homeless men competing not for a bed, but for a space on a concrete floor,” he said Nov. 9. “But even more heart rending is going the other direction was a line of mothers and young children also competing with the adult men for floor space.
“It was shocking in what appears to be a relatively civilized city to watch a little boy hoping to get to sleep on the floor.”
Crews, who had done some work with low-income housing, went to meet Hayes at Austin Street.
“They just sort of stirred my heart,” Crews said of the people he saw there. “I just went to work in trying to find a cause of action to get these people some help.”
Taking the lead from Stephen McIntyre, a Lubbock lawyer who had filed other successful suits based on the archaic statute, Crews sued the county in February 1987 based on the “paupers” provision.
McIntyre, name partner in Lubbock’s Mercado & McIntyre, had filed several successful suits in federal court based on the statute, the first one in 1980 against the city of Lubbock on behalf of four women living in an abandoned apartment complex. He won the case on a due process violation, got the women help from the federal government and they each received a symbolic $1 in punitive damages, McIntyre said.
Through a series of interviews with homeless people, Crews came up with six people to be plaintiffs in what would later become a class action. Only one of those people, Benton Conley, still lives in Dallas County. Another plaintiff, Billy Johnston, died on the street in 1988. The rest have left the county, Crews said.
More than two years after the filing, despite what Crews calls “rancid” jury instructions from 191st District Judge David Brooks that leaned toward the county’s interpretation of the statute, the jury found that the county has failed to comply with the state law and had refused to provide assistance to people eligible for assistance.
Homeless advocates have called the case a landmark with statewide implication.
“The statute makes it pretty clear that there is a responsibility for caring for homeless people,” said James Harrington, legal director for the Texas Civil Liberties Union. “That’s why it has a lot of potential. A lot of officials had just hoped it would go away.
“It’s there and the court decision means that it has meaning,” he said.
If, in the worst-case scenario, the case is appealed, Crews said he is confident he will win.
“But we’re not interested in that,” he said. “We want to get it resolved now. Not two years from now.
“The problem is the county doesn’t really view it that way.”
Stephen C. McIntyre 