Contents:

Calendar of Events
Family Law
State Legislative Update
1999 MPLP Training Agenda
Housing
Public Benefits
Technology
Clinic Update

Rick McHugh has joined the Michigan Poverty Law Program-West as a staff attorney effective October 26. Rick will be based in Ann Arbor with statewide litigation and advocacy responsibilities. In addition, Rick is taking primary responsibility for handling referrals from local programs to the Michigan Legal Assistance Partnership Program (MI-LAPP), the State Bar's pro bono referral program.
        For the last three years, Rick has been a solo practitioner handling labor, fair housing, employment and unemployment insurance cases in state and federal courts. Rick successfully represented the Detroit newspaper workers in their unemployment insurance case and won a favorable ALJ decision in October 1997. In a unanimous May 1998 decision by the Michigan Supreme Court, Rick won unemployment insurance benefits for a nurse's aide held by lower courts to have "voluntarily" left her work after she was denied maternity leave and reinstatement by her employer. Rick's legal experience includes 5 years with the Legal Aid Society in Louisville, Kentucky and 11 years with the UAW Legal Department in Detroit.
        Rick is available now to discuss cases/issues with Legal Services staff. In particular, Rick has a background in state appellate cases, class actions, and federal government benefits cases. He is available to consult or co-counsel in appropriate cases. He adds new expertise at MPLP. Rick has extensive unemployment insurance knowledge, including Trade Adjustment Assistance. In addition, if you have clients with Fair Labor Standards Act, Family Medical Leave Act, state wage payment claims, or fair housing issues, you should feel free to contact Rick.

Michigan Poverty Law
Program-West
611 Church Street, Suite 4D
Ann Arbor, Michigan 48104-3000
ph. (734) 332-1015
fax (734) 332-1013
e-mail: rmchugh@umich.edu

Also joining the staff this month on a part-time basis at MPLP-East is Alison Hirschel. Alison will be working on a joint project with Michigan Protection and Advocacy Service, Inc. (MPAS) to provide substantive support, coordination and training to legal services staff and other advocates who represent elderly clients; she will also directly advocate for the vulnerable elderly. The two year project which is funded in part by the Michigan State Bar Foundation will also seek to improve coordination and communication among advocates for people with disabilities, legal services staff, and advocates for the elderly.
        In the next couple months, Alison will be setting up an elder law task force and arranging trainings on subjects of particular interest to elder law practitioners. In addition, she will be happy to work with legal services providers who need assistance with elder law cases and to share materials and news about developments in elder law. In both her advocacy efforts and her work with other elder law practitioners, Alison will be focusing on health, benefits, and individual rights issues affecting vulnerable seniors with an emphasis on Medicaid and Medicare, quality of care and individual rights in long term care, guardianships and conservatorships, and mental health and social and health care services for seniors.
        During the past year, Alison had a fellowship from Yale Law School to provide advocacy and representation to the vulnerable elderly in Michigan. Before coming to Michigan, Alison worked for 12 years at Community Legal Services, Inc. in Philadelphia as a staff attorney and co-director of CLS's Elderly Law Project and as the agency's Director of Planning. While at CLS, she specialized in issues concerning Medicaid, nursing homes, and guardianships and was involved in individual and impact litigation, legislative and administrative advocacy, and training for professional and client groups. Alison also teaches a course on elder law at the University of Michigan Law School and taught a similar course for many years at the University of Pennsylvania Law School.
        Alison is looking forward to meeting the legal services staff from around the state who work with elderly clients and learning about their efforts and interests. Alison will be splitting her time between the MPAS office in Lansing and the MPLP-East office in Ann Arbor.

Monday, Wednesday and Friday
She can be reached at MPAS at
1-800-288-5923 or (517) 374-4636

Thursday
Alison plans to be at the MPLP-East office every Thursday and can be reached there at (734) 998-6100. ext. 33.

In addition, you can e-mail her at hirschel@umich.edu.
 

As the MPLP-Clinic moves into its fourth semester, we have become a permanent part of the UM Law School's clinical program. Beginning with the Fall 1998 semester, Anne Schroth was hired as a permanent clinical faculty member on a long-term contract. In addition, the MPLP-Clinic- previously a separate clinical course-was integrated into the Michigan Clinical Law Program, the general civil/criminal clinic at the law school. This integration provides more administrative and litigation support for MPLP and, in particular, adds a wealth of impact litigation experience to MPLP-Clinic that, in turn, will now be available to legal services field programs. There will continue to be a concentration of eight students, supervised by Anne Schroth and focusing on issues of women in poverty (the original focus of the MPLP-Clinic component), but the impact project referrals will be shared by all six faculty members, including Paul Reingold, Nick Rine, Juliet Brodie, Bridget McCormack, and Andrea Lyon. This increases the depth and breadth of experience among the MPLP-Clinic attorneys and-we hope-will help develop an active impact docket of legal services referrals.
        In addition to our administrative changes, the Clinic has developed an active and diverse case load. For example, the clinic submitted an amicus brief to the Michigan Supreme Court on behalf of LSAM and WLAM in the Ghidotti v. Barber case, a case from Legal Services of Southcentral Michigan involving the imputation of income to a public assistance recipient for child support payments to a noncustodial child. The Supreme Court recently decided in favor of the legal services position and reversed the lower court decision. In other appellate successes, the Court of Appeals recently vacated and remanded two orders of the Washtenaw County Circuit Court on which the Clinic had filed applications for leave to appeal. In both cases, the Circuit Court judges denied our clients' fee waiver applications solely because the clients were not receiving public assistance, despite the fact that each client was financially eligible for public assistance but technically ineligible because of immigration status. The Court of Appeals decided that, although the clients may not have been receiving welfare, there had been a showing of indigence in their fee waiver affidavits. The Clinic continues to accept referrals of individual cases (primarily domestic violence, family law and public benefits cases), as well as statewide impact projects. In addition, with our expanded capacity, we are able to accept referrals of individual housing and consumer cases. While geography and the academic calendar limit the volume of cases we can accept, we encourage field programs to call us with potential cases. We are especially looking for statewide impact cases or projects that field programs cannot pursue on their own (either due to caseload or LSC constraints).
        Feel free to contact the Clinic with referrals or questions about referrals: Anne Schroth, 611 Church Street, Ste 4E, Ann Arbor, MI 48104; tel. (734) 998-6100, ext. 26; fax (734) 998-9125. schroth@umich.edu; Groupwise: schroth  

The 1998 legislative session has ended and the legislature will not meet in until January 1999. The good news for the 1998 session is the legislation that did not pass, including drug forfeiture bills, and removal of good cause protection of four mobile home tenants who rent their mobile homes, increased allowable costs and attorney fees in summary proceedings, and drug testing to the welfare recipients. However, we expect some or all of these issues to reappear in the 1999 session.
        A primary concern now is a series of bills introduced by Sen. Schuette which would authorize the sale of public housing and accelerate the tax foreclosure procedure. Sen. Schuette plans to move these bills in February, 1999. There are more details about this package of bills in the Housing Law report on page 8.
 

MARCH
CORT Advanced Substantive-Ann Arbor, Michigan (March 16 & 17). Substantive training on a variety of poverty law topics designed for more experienced advocates.

APRIL
CORT Litigation Planning-Lansing, Michigan (April 29). Pre-requisite for TAST. Trainees work with the same case problem that they use in TAST and prepare trial notebook for TAST.
CORT Technology -Ohio (2-3 days in April)

MAY
CORT Negotiations-Ann Arbor, Michigan (May 19-21). Negotiations skills training open to paralegals and attorneys.

JUNE/JULY
FWLS Migrant Farmworker Training-June (2 days). Training on substantive migrant farmworker issues-to aid programs in issue spotting and referrals.
LSNM Coldshow-June (2 days). This is an annual program-wide training/update event for the Northern program.
CORT TAST (Trial Advocacy Skills Training)-West Virginia (1 Week in late June or early July) Intensive trial skills training with emphasis on practice exercises and critique by experienced practitioners. Culminates in a mock trial. Open to attorneys who have completed Litigation planning and are in at least their 2nd year of practice.

SEPTEMBER
Management Training-Ohio (3-4 days in September)

OCTOBER
MPLP Statewide Substantive Training (FNA The Roadshow)-Lansing, Michigan (October 18-22). This is a five day, statewide substantive law training. 1 day dedicated to each of the following areas: Housing, Family, Public Benefits, Consumer and Technology/Support Staff and 1/2 day for Elder Law.

DECEMBER
CORT BLST (Basic Lawyers Skills Training)-Ann Arbor, Michigan (December 7-10) Introductory skills training for attorneys in first two years of legal services practice. The training includes introductions to the following areas: client interviewing, motion practice, discovery/depositions, negotiations and trial practice skills.
Mini-Seminars-MPLP will schedule other short trainings throughout the year on topics of current interest in consumer, housing, family, public benefits, elder law and technology. These are usually scheduled and notices sent in conjunction with the taskforces.
Training Dates-This year we tried to set specific training dates for each training we are responsible for at the beginning of the year. This is a little risky in that unforeseen things come up that can necessitate a date change. We will try to avoid changing these dates like the plague. However, final dates will come out 2 months in advance of each event with the training notice. It is our hope that in publishing dates this far in advance people will be able to plan around these trainings.

February 2 PPO Roundable
March 1 Public Benefits Taskforce Meeting
March 2 Housing/Consumer Taskforce Meeting
March 4 MPLP Advisory Board Meeting
March 9 Family Law Taskforce Meeting
March 16-17 CORT Advanced Substantive Law Trng.

For details on any of the above events, see our website at http://www.mplp.org
 

State Technology Planning Initiative
In an effort to get a little better organized and communicate with the field on state technology initiatives, the Legal Services Computer Committee (LSCC) has updated the Michigan Technology Plan and developed a number of workplans for it's current projects. The workplans delineate goals, assign responsibilities and set deadlines for each project. Current workplans include:

• LSCC Workplan
• Email Project
• Case Management Software Pilot Project
• Michigan Legal Assistance Network Project
• Internet Access Pilot Project

You'll can find a copy of the revised Michigan Technology Plan and the workplans on the MPLP website at http://www.mplp.org/lscc.htm. The LSCC workplan calls for quarterly update reports on the status of all workplans. Those will be distributed by email and available on the MPLP website.

Trent Cahill Joins Michigan Technology Support
Trent Cahill has joined the State Bar of Michigan's Access to Justice initiative as ATJ Director of Technology. As Director of Technology he will assist legal services field programs on statewide technology projects. Trent's current workplan includes work on the email project, case management software pilot project, website development and to staff the LSCC and Technology Subcommittee of the Access to Justice Taskforce.  Trent has already spent a good deal of time in field offices installing GroupWise Email and assisting in the implementation of the case management pilot project.

MPLP.ORG
The Michigan Poverty Law Program has a new internet address: MPLP.ORG. This means that you can now access the MPLP website using the web address: http://www.mplp.org and your GroupWise internet email addresses can be shortened to <user ID>@mplp.org. The old address (mplp.law.umich.edu) still works for both email and the website but we hope that this shortened address will make giving out your internet email address and accessing the website easier.

Email Project Update
The Email Project began as a pilot in 1995 and has included installation of the GroupWise email system in most legal services offices in the state and the addition of an internet connection to the GroupWise system. From its inception the GroupWise email system has been dependent on long distance dial-up connections to transfer mail among the offices. These dial-ups bring with them a monthly long distance cost for each office. With the rapid development of the internet it is now possible to use the internet to reliably transfer email at a very reasonable cost.
        It is the goal of the Email Project to determine the best method of using the internet to transfer email and thereby eliminate the monthly dial-up charges of the current GroupWise system. The LSCC has also recently surveyed current GroupWise users to determine email usage and satisfaction with the GroupWise system. An Email Project report detailing the survey results and giving a recommendation for a future internet email solution is due out in the 1st quarter of 1999. You can find a copy of the current Email Project Workplan and the report when it comes out on the MPLP website at http://www.mplp.org/emailsupport.htm.

On-line Brief Bank Needs You to Submit
(www.mplp.org)

The MPLP on-line brief bank has been open for several months and has seen some light donation activity. However, this is only a start. WE NEED YOUR BRIEFS! (and other documents) Submissions can range from a US Supreme Court brief to a simple written argument submitted in an administrative hearing. If you have a law student do a memo that has some original legal research in it send it in. District Court, Circuit Court and unpublished Court of Appeals opinions - +send it in. Don't assume something is too obscure, let us worry about weeding out the irrelevant submissions. Send your submissions to Steve Gray at MPLP-East. We prefer submissions in a word processing file attached to an email message (and can handle any version). However, we have a scanner to handle documents for which you don't have the word processing file.
        The brief bank is password protected so you'll need a user name and password to access the documents. To get the user name and password email Steve Gray at grange@mplp.org. The brief bank is intended for the use of legal services programs and related pro bono attorneys. Please do not give the password to others.
        The Brief Bank is only as valuable as the briefs it contains. Right now it is not overflowing. We are dependent upon you for content. Please make an effort to discuss setting up a donation plan in your office and SEND US YOUR BRIEFS!
 

WE CAN DO IT!: PERMISSIBLE WORK ON WELFARE REFORM BY LSC-FUNDED PROGRAMS

Many of you undoubtedly have noticed the following message at the bottom of Public Benefits Task Force Meeting announcements and other memoranda: "Programs receiving funds from the Legal Services Corporation (LSC) are governed by LSC regulations restricting their activities. See 45 CFR 1604-1643. Advocates in those programs are reminded that they may not engage in any activities prohibited by those regulations." However, it is probably less likely that very many of us are thoroughly conversant with those regulations, and, in particular, with section 1639, which specifically limits the activities of public benefits advocates at LSC-funded programs. Very soon, that will no longer be the case.
        An eight-page "guide," prepared by Alan Houseman of the Center for Law and Social Policy (CLASP), entitled "Permissible Work on Welfare Reform by LSC Recipients" will be sent to every member of the Public Benefits Task Force and made available to every program office. A longer version of the guide also will be available on the MPLP web site at http://www.mplp.org/welfareguide.htm. The guide provides an in-depth analysis of the section 1639 restrictions, covering almost every conceivable activity, and includes lists of specific permissible activities. It is our hope that by distributing this information, MPLP can assist program advocates in both determining how to best take advantage of MPLP's support services and determining how to provide the widest range of services to meet the needs of clients in their particular service areas. Ultimately, despite the restrictions, there remain many opportunities for creative advocacy in the service of our clients.
 A summary of some of the provisions of the CLASP guide is as follows:
Areas of practice not affected by the welfare reform restrictions: LSC recipients can provide individual representation (but not class action representation) before courts and administrative tribunals in all of the following areas: unemployment insurance; social security; SSI cases for adults (with a few minor exceptions); most medicaid issues; medicare; and veterans benefits.

Areas of practice affected by the welfare reform restrictions: LSC recipients can still provide individual representation in most cases on behalf of clients with problems involving the following issues: AFDC or TANF benefits; SSI for disabled children; food stamps; child and adult nutrition programs (e.g. school lunches); entitlement of aliens to public benefits and other services; and child care.

Some specific examples:
Legal Representation in Court:
LSC recipients cannot challenge in court or seek judicial review of agency actions in order to challenge laws or regulations formally adopted pursuant to public notice and comment ("formal regulations"), which were enacted as part of reform of a federal or state welfare system. Thus, recipients cannot bring lawsuits to challenge TANF itself or other specific provisions of state statutes enacted under TANF, such as time limits on receipt of assistance, work requirements, family cap provisions, or teen parent requirements. The same restrictions apply to representation before administrative agencies (primarily the Family Independence Agency).   However, policies and practices of state agencies like FIA may be challenged (for example, as being inconsistent with statutory law or formal regulations) on behalf of individual clients seeking relief from those policies, as long as the recipient does not challenge existing statutory law or formal regulations. In addition, LSC recipients can represent individual clients who contend that certain provisions of statutory law or formal regulations promulgated pursuant to welfare reform are being applied improperly to them (for example, if a child's Medicaid case is closed improperly as a consequence of the child's mother's failure to comply with Family Independence Program work requirements). Finally, recipients also may challenge an agency policy on the grounds that it violates a state or federal constitutional provision, as long as the challenge does not also seek to invalidate a state or federal law or formal regulation (for example, if agency policy failed to ensure adequate notice and an opportunity for hearing prior to termination of assistance for failure to comply with FIP work requirements).

Representing Aliens:
LSC recipients may represent individual alien clients in fair hearings, SSI hearings, and in court to obtain relief from actions of federal and state agencies administering programs which may no longer be available to certain aliens. Often this individual advocacy will involve questions about the proper application of new policies to a particular alien. Such representation is permissible as long as the alien is otherwise eligible for representation by an LSC recipient under 45 CFR1626. On occasions when it is necessary for the alien client to challenge federal and state laws and policies promulgated pursuant to welfare reform on constitutional grounds, those challenges cannot be brought by LSC-funded recipients in court or in administrative processes.

Rulemaking and Administrative Advocacy:
LSC-funded programs cannot attempt to influence any rulemaking or the issuance, amendment or revocation of any executive order. "Rulemaking" is defined to mean any agency process for formulating, amending, or repealing rules, regulations or guidelines of general applicability and future effect issued by the agency pursuant to federal, state, or local rulemaking procedures. FIA policies expressed in PEM, PAM, and PRM are not rules issued pursuant to rulemaking procedure.

Advocates in LSC-funded programs may still:
• participate in administrative proceedings adjudicating the rights of individuals, such as social security hearings and welfare fair hearings;
• communicate with agency personnel for the purpose of obtaining information, clarification, or interpretation of the agency's rules, regulations, guidelines, policies or practices;
• negotiate with agency personnel about the application of an agency rule or policy to the client being represented and may attempt to get the agency to change its interpretation or even its policies as they affect an individual client;
• track regulatory developments at the state or federal levels and inform clients, other recipients or others about the status, content, and meaning of new or proposed executive orders, or administrative regulations;
• participate in discussions about regulatory developments on welfare reform during task force meetings or in other settings; and
• advise clients about the effect of agency rules and policies, analyze and explain proposed changes and their effect, and advise their clients about their right to themselves participate in agency rulemaking proceedings.

Agency Practices:
Advocates in LSC-funded programs may advocate with administrative officials and represent clients to change the practices of welfare institutions and agencies so that they are more responsive to the needs of the poor, as long as such advocacy and representation is not part of a rulemaking proceeding, does not involve the recipient in prohibited welfare reform activities, or is not part of a grassroots lobbying effort to affect agency decisions.

Community Legal Education:
Advocates in LSC-funded programs may undertake community legal education (CLE) programs on welfare reform efforts, including those that describe what a state is doing or proposing to do under its TANF program. In addition, such CLE programs can provide information about changes in the food stamp program and in SSI for disabled children or adults, as well as the new provisions on public benefits and deeming for aliens. CLE programs may be run at program offices and in various community settings, such as community centers, domestic violence shelters, nursing homes, housing projects, welfare offices, and hospitals. Programs may also establish intake at courts, government agencies and community centers, may train clients to handle their own cases pro se, and may train lay advocates to assist them.

Community Economic Development:
Advocates in LSC-funded programs may represent welfare recipients in community economic development activities and may engage directly, or in collaboration with private lawyers, in necessary transactional activities, such as helping welfare clients establish daycare centers, develop child care enterprises or engage in micro-enterprise activities; working with CDCs to develop job training and employment programs for FIP recipients; undertaking activities to improve the business climate in low-income communities; working with government, private and nonprofit organizations to develop public jobs programs; or working with government and private entities to develop transportation systems to help welfare recipients get to where job opportunities are located.

Collaboration and Coordination:
Advocates in LSC-funded programs can coordinate services and develop collaborative relationships with non-LSC funded programs, such as MPLP-West and the University of Michigan Poverty Law Clinic, as well as with private lawyers and law firms to ensure that low-income persons and families receive effective legal assistance and that necessary policy advocacy goes forward. Advocates may: refer restricted cases to non-LSC-funded programs and pro bono lawyers; participate in joint task forces and training programs operated by other recipients or non-LSC-funded entities and which include advocates from non-LSC-funded programs, pro bono programs, and private attorneys; and may co-counsel with private attorneys or attorneys from non-LSC-funded programs so long as the cases are not prohibited cases (class actions, welfare reform) and the clients represented are not ineligible because of status (alien or prisoner).

For copies of the CLASP guide, or if you have further questions about these issues, please call or email David Koeninger at wdkoenin@umich.edu

******************************************************************
REMINDER: Advocates with questions or issues that they wish to discuss are invited to share them electronically with Task Force members via the MPLP listservs:

• consumer@mplp.org
• crp@mplp.org
• elder@mplp.org
• family@mplp.org
• housing@mplp.org
• publicbenefits@mplp.org

BENEFITS ADVOCATES SCORE VICTORIES IN SIXTH CIRCUIT CASE

Sweeten v. Apfel, Case No. 98-1964: On November 9, 1998, the United States Court of Appeals for the Sixth Circuit granted the parties' joint motion for remand for the purpose of awarding four-year-old Jessica Sweeten, childhood disability (SSI) benefits. Jessica's mother filed an application for benefits on May 26, 1994, after Jessica was diagnosed with histiocytosis x, or Langerhans Cell Histiocytosis, a rare blood disorder that affects one in 200,000 children annually, and is often fatal before the child reaches age 2.
        Despite the fact that a diagnosis of any of the histiocytosis syndromes (there are three) automatically meets section 113.03 of the listings of impairments, Jessica's claim for benefits had been denied and the denial affirmed in United States District Court. It was only after the appeal to the Sixth Circuit was filed that the Social Security Administration conducted a new medical review of the file and realized its error. As a result, the SSA agreed to move to remand the case for an award of benefits.
        The case was the first to be co-counseled by MPLP and a local program, Lakeshore Legal Aid, before the Sixth Circuit. Lakeshore Director Candace Crowley and MPLP Public Benefits attorney David Koeninger achieved the favorable result.

Boatman v. Hammons, Case No. 97-1530: On December 18, 1998, the United States Court of Appeals for the Sixth Circuit issued an opinion reversing in part the district court's dismissal of the plaintiff's complaint on summary judgment. Boatman is a class action lawsuit challenging Michigan's Medicaid transportation policy. The lawsuit raised three federal law claims against the defendants, the Michigan Family Independence Agency and the Michigan Department of Community Health: 1) that the state failed to provide written notice when requests for Medicaid transportation benefits are denied; 2) that the state failed to provide sufficient information regarding transportation assistance; and 3) that the state failed to achieve uniform statewide operation of its Medicaid transportation policy.
        In reversing the district court's decision, the Court ordered the entry of an injunction: 1) requiring the defendants to provide written notice to Medicaid recipients at the time of any denial of transportation assistance, containing, as required by 42 C.F.R. §§ 431.206 and 431.210, a statement of the denial; the reasons for the denial; and an explanation of the individual's appeal rights; and 2) requiring the defendants to provide to all applicants and others on request, written information explicitly acknowledging that defendants are obligated to ensure transportation for Medicaid recipients to and from medical service providers.
        Congratulations on the victory go to Jackie Doig, who argued the case before the panel, and Terri Stangl of the Center for Civil Justice.

Federal Assisted Housing Report

In the Wake of HUD Reform-As its tries to implement its "HUD 2020 Management Reform" initiative, the U.S. Department of Housing & Urban Development is in a state of administrative overhaul (upheaval?). Among the primary objectives of HUD 2020 are: reduction by 2000 of HUD staff from 10,500 to 7,500; organization of staff according to function rather than program; reduction in the number of HUD programs from more than 300 to less than 75; creating a "storefront" (for "customers") and "back-office" (for paperwork) organizational structure. Depending on how one views it, HUD 2020 has engendered chaos, dysfunction, and paralysis, or it is bringing much needed and positive change to the Department. Whatever their perspective, virtually all observers recognize that HUD is pulling back from rather than intensifying its management of federal housing programs.
        Recent federal housing legislation reflects this diminishing role of HUD. The Multifamily Assisted Housing Reform and Accountability Act of 1997 (MAHRA) established the mark to market ("M2M") portfolio restructuring program which assigns to state entities (predominantly state housing finance agencies; in Michigan, MSHDA) a key administrative role (the title for the role is participating administrative entity, "PAE") that in the past HUD would almost certainly have filled.

M2M was enacted in response to the escalating cost of renewing Section 8 property (project) based subsidy contracts. Over the last several years, a large majority of Section 8 contracts (usually having 20 years terms) for properties have been expiring. Rather than for a long term, these contracts are being renewed on an annual basis. The cost of annual renewals in FY99 will approach 10 billion dollars.
        Under M2M, with some exceptions, subsidized properties with HUD held or insured mortgages and above market Section 8 contract rents (total rents, not just the tenant portion) must agree to a financial restructuring aimed at bringing their rents to the market rate. The primary vehicle for achieving this objective will be soft/sleeping/deferred second mortgages for the debt beyond what market rents will support. As part of the process, the quality of management and physical condition of the property will be addressed; properties deemed "troubled" will not be eligible for restructuring. Administering the process will be the PAEs. Among their many duties will be to determine towards the end of the process whether it is more feasible for the property to operate with a project based subsidy or vouchers.

Below Market Properties-At the other end of the rent spectrum are below market properties. typically these are older properties developed under the 221(d) and 236 mortgage programs (predecessors to Section 8). Most of these properties later received Section 8 operating subsidies to remain viable. Again with some exceptions, these properties are being presented the choice of renewing their rents at current rates or opting out of the Section 8 program. Given their rent prospects, many owners with desirable properties in hot markets are exercising their right to prepay their mortgages and exit the subsidized market entirely. In the last 3 years, according to HUD data the National Housing Trust has analyzed, owners of 12 assisted properties in Michigan consisting of 1,752 units have made prepayments.
        Residents of assisted properties that leave the subsidy programs get vouchers and their attendant risks (e.g. placement/utilization failure and lower protections against termination of tenancy), but no guarantee of affordable housing.

Assisted Housing Preservation Working Group-The risks in 1999 to privately owned HUD assisted affordable properties and their tenants are significant. To monitor, exchange information, and coordinate advocacy on the issues posing these risks, a working group on assisted housing preservation in Michigan has been formed. Anyone interested in participating in this working group or finding out more about it, is urged to contact Jim Schaafsma at MPLP-East.

Public Housing Reform-A second example of the transfer of some of HUD's traditional authority to local entities is the recent public (and subsidized) housing reform law, the Quality Housing and Work Responsibility Act of 1998 ("QHWRA"). Although many of its most radical proposed provisions were tempered, this law elevates the autonomy of local public housing authorities ("PHA") on many matters, including rents (including earnings exclusions), admission preferences, criteria, and waiting lists. One of the most positive changes the law makes is streamlined mandatory income exclusions, including a one-year delay in rent increases for persons who become employed after having been unemployed for at least 1 year or who have received TANF benefits within the previous 6 months. Found at 42 U.S.C.§1437a(d), this provision, along with most others in the law, become effective October 1, 1999. The admissions targeting provisions of the law however demonstrate the congressional desire, nurtured by HUD and the PHAs, to make public housing more attractive and available to those with higher incomes than its historical resident population.

PHA Plan-As pointed out at the Roadshow and a recent CORT training on the law, QHWRA does offer an opportunity for low income housing advocates to work with public housing tenants in shaping local administration of programs. Under what will be designated as 42 U.S.C. §1437cA, beginning October 1, 1999, PHAs must submit 5 year and annual plans to HUD. PHAs must ensure that the plans are consistent with the local consolidated plan, and obtain local government certification that it is. The 5 year plan must include statements of the PHAs mission for serving the needs of low and very low-income families and of its goals and objectives.
        The requirements for the annual plans are more detailed. Annual plans must contain information in 18 areas, ranging from admission, rent, and grievance procedures to capital improvements and management issues. Before adopting a plan, a PHA must conduct a public hearing (preceded by 45 days notice and an opportunity to inspect the proposed plan and all information relevant to it), consider all comments received, and make changes to the plan in consultation with its resident advisory board which must be representative of the residents assisted by the PHA. For more information about the PHA plan process or QHWRA generally, please contact Jim at MPLP-East.

State Housing Legislative Report

No significant bills relevant to low income housing practice emerged out of the Michigan Legislature in the second half of 1998. The change of the party in control of the House does present a liklihood of more activity on housing issues in the new year.

Urban Homesteading Package-One package of bills poised to move early in the year is the so-called "urban homesteading" package (1998 Senate Bill Nos. 1324-1331; ) These bills would allow local government and housing commissions to offer on a lease/purchase basis tax foreclosed ("reverted") and abandoned properties and public housing units to "qualified buyers" (employed persons, who have not been convicted of a drug felony within 3 years, whose children attend school regularly, and whose income is below the state median).
        Although there are many positive attributes to the homeownership opportunities these bills would create, the bills contain many items of concern. Among them are the loss of guaranteed long term affordable public housing units; accelerated tax foreclosure procedures without additional safeguards for resident owners, including limitations on tax sale "scavengers"; and questions about the flexibility of rules for eligibility and continued participation in the homeownership programs. For more information about the urban homesteading package, please contact Mike Nelson at MPLP-West or Jim.
 

Pro Se Divorce Forms
The Pro Se divorce forms have been completed thanks to the diligent work of Rahmah Abdulaleem, a student working this summer with the University of Michigan Poverty Law Clinic. Amy Tripp of Legal Service of Southeastern Michigan-Jackson office, has agreed to test the forms for us and will report to the task force on their success.

Amicus Committee
As approved by the task force, the Amicus committee prepared an amicus brief in the case of Walterhouse v Ackley. The brief was filed on the behalf of the Legal Service Organization of South-central Michigan and Women Lawyers Association of Michigan. The main issue in Walterhouse is whether a limited guardian has standing under the custody act when the guardianship was created before placement plans were required. The Supreme Court recently overturned the favorable decision of the Court of Appeals. However, the Supreme Court did rule that the constitutional issues raised in the amicus brief should be fully review and remanded the constitutional issues back to the Court of Appeals for review.
        If you are interested in participating on the amicus committee, please contact Delphia Simpson at MPLP-East.

PPO Research Project
Anne Schroth of the University of Michigan Poverty Law Clinic announced that the PPO survey and research project has been completed. The student who took on the project, Kristen Tsangeris, worked very hard and put in many hours to produce a very detailed report. Once Professor Schroth has had the opportunity to fully review the project, she will release the relevant portions of the report on the MPLP web site.

Roadshow 1998
The road show was held on October 26-30, in Lansing, Michigan and by all accounts was a great success. Once again Delphia would like to thank the task force members who gave lectures: Anne Schroth-University of Michigan Poverty Law Clinic, Mike Yales-Legal Services of Southeastern Michigan, Rebecca Shiemke-Family Law Project, Kari Deming-Oakland Livingston Legal Aid, William Knight-Lakeshore Legal Aid and Ann Routt-Legal Service of Southeastern Michigan.
        Delphia would like to extend a special thank you to Bill Knight and Ann Routt for stepping in at the last minute to give outstanding lectures when two previously scheduled presenters unexpectedly withdrew.
        In addition, we were very lucky to have three outside lecturers, Joseph Cunningham of Plante & Moran an expert on Qualified Domestic Relation Orders, Jean Doss, a lobbyist from Capital Services and Patricia Hoff, Esq., a consultant to the American Bar Association. Ms. Hoff is one of the foremost experts on interstate custody disputes. The materials provided by the lecturers were excellent and if you were unable to attend and would like copies of the materials please contact Delphi Simpson at MPLP-East.

Impact Activities
Anne Schroth with the University of Michigan Law Poverty Clinic is interested having the family law task force develop a prioritized list of current issues / problems / cases that affect our clients. Remember the Clinic does not operate under the LSC restrictions. Please send your thoughts to Anne Schroth at schroth@umich.edu

Ghidotti v Barber VICTORY !!!!!
The Supreme Court of Michigan heard arguments in the Ghidotti v Barber case on October 7, 1998. Jeanne McGuire, the Director of Legal Service Organization of South-Central Michigan, argued on behave of the Appellant-mother. As you may remember, the case concerned whether a recipient of the AFDC could be deemed to be voluntarily unemployed and placed under a support order. The Circuit Ccourt calculated and imputed income to the mother that was equal to what she would have earned if she worked full time at minimum wage and then ordered that she pay weekly support.
        The Court of Appeals upheld the decision of the lower court and stated that the fact that party receives an AFDC grant is irrelevant when determining whether a parent is voluntarily unemployed.
        On December 28, 1998, the Supreme Court issued an opinion written by Justice Brickley, joined by Chief Justice Mallett, Justice Cavanagh and Justice Kelly that held "The statutorily authorized Michigan Child Support Formula Manual prohibits the imputation of means-tested public assistance benefits as income. When a trial court deviates from the formula, it must set forth in writing why following the formula would be unjust or inappropriate. This trial court did not do so."
        Justice Boyle, Weaver and Taylor dissented stating that the last provision of subsection I of the Child Support Guidelines Manual is void and the categorical preclusion against imputing income to means- tested benefits recipients cannot be given effect. The dissenting opinion further stated that the trial court record clearly supports the finding of a voluntarily unexercised ability to earn.
        Congratulations are extended to Jeanne McGuire as well as to Mike Nelson at MPLP-West who wrote the appellant brief and to Anne Schroth, her students, and W. David Koeninger who wrote the amicus brief on behalf of the Legal Services Association of Michigan and the Women Layers Association of Michigan.

Legislative Update
There were very few family law bills passed this session. The domestic assault package that will prevent life insurers, health insurers, and HMOs from canceling or reducing coverage or raising the rates of domestic violence victims was passed. Plus, the child support bills that were designed to bring our current child support law in compliance with the federal requirements of the PRWORA became law.
        The legislative term ends this year and, to our delight, the bills that the task force was concerned about, (parenting time and shared parental responsibility), were not passed. However with the new make up of the house and senate, MPLP-West and Capital Services expect to see these bills come up again, along with the convent marriage and the fault divorce bill. The Legislative Advisory Committee of the Family Law Task Force is meeting on February 2, 1999, at Legal Aid of Central Michigan in Lansing Michigan at 10:00 a.m. in Room 204. The purpose of the meeting is to discuss the upcoming legislative session. If you are interested or if you would like more information please contactDelphia at MPLP-East.

Recent Cases:
Hoshowski v Genaw - 230 Mich. App. 498 (June 1998)

Affidavit Acknowledging Paternity.
Defendant mother appealed by leave from an order of filiation that deemed the plaintiff to be the father of the defendant's daughter. Defendant claimed that the father lacked standing to seek the order of filiation pursuant to the Paternity Act. The mother reasoned that because she was a married woman from the time of conception to the birth of the child, the child was not born out of wedlock thus the Paternity Act was not applicable. The plaintiff Father argued that since the parties properly executed an Affidavit of Acknowledgment of Paternity under the 1994 amendments, which added subsection (9) to M.C.L. 700.11 of the Revised Probate Code and subsection (2) to M.C.L. 722.714, that he had standing. The Court held that the statutory amendments are clear and unambiguous. Because plaintiff and defendant properly executed an affidavit as to paternity when the child was born in 1995, plaintiff paternity was established "for all purposes" unless he is proven not to be by clear and convincing evidence. The Court further held that the plaintiff is not required to proceed under the Paternity Act before seeking parenting time or custody of his child.

Kwiatek v Kwiatek - Unpublished (13 Mich. LW 153, December 1998)

Fault for the breakup of the marriage
Although this case is unpublished, it may be useful when you are attempting to argue that your client should receive a larger portion of property in a divorce case. There is only one caveat--make sure your client has not engaged in the same activity.
        The parties had been married for nine years and the defendant admitted at trial that he had a cocaine addiction, but he was in recovery. Both parties worked though out the marriage. The plaintiff's income was larger then the defendant for most of the recent years but the plaintiff showed that her household expenses were more. The defendant in the past earned more income, but admitted that his cocaine addiction had a negative impact on his earning capacity. The trial court found that defendant was at fault for the break up of the marriage due to his cocaine addiction and extra marital affairs and awarded the plaintiff 60 percent of the marital assets. The Court of Appeals held that the trial court findings were amply supported by the evidence.

Put On Your Calendar
Family Law Task Force Meetings for 1999: March 9, June 8, September 7, December 14.

PPO Roundtable and Legislative Advisory Committee Meeting: February 2, 1999.

A Voice From The Field:
Wayne County Family Court Special Master Program-Dorothy Hague, WCNLS

In early 1998, just after the Family Division of the Third Circuit Court came into being, Richard B. Halloran, a former 36th District Court Judge, was appointed by Governor Engler to the Third Circuit. Judge Halloran became a member of the new Family Division judiciary. He was very knowledgeable on the subject of domestic violence and had co-chaired the Wayne County Coordinating Council for the Prevention of Domestic Violence for many years. Soon he took on the onerous task of hearing all of the matters relating to domestic violence in the new Family Division.
        Wayne County has experienced a great increase in the number of PPO Petitions since 1994. In January 1994, only 96 petitions were filed as compared to 1337 petitions filed as of July 1998. In the spring of 1998, Judge Halloran decided to appoint several private and public attorneys to assist him in dealing with the great number of Personal Protection Orders applied for in Wayne County. After submitting my resume to Judge Halloran, he asked me to be one of the attorneys to assist him with the overwhelming PPO docket. I was honored to accept the appointment.
        We are called "Special Masters." The Special Masters are charged with the duty to review Petitions for Personal Protection Orders as well as Motions to Modify or Terminate a PPO. Our duties are similar to those of the Friend of the Court referees, in that we issue recommendations to the judge. After a hearing, the Master could either grant ex-parte relief, deny ex-parte relief or deny the petition in its entirety. As a special Masters we also hear Motions to modify or terminate PPOs.
        This procedure has worked very well. The Special Masters and Judge Halloran meet periodically and review the process and brainstorm on ways to improve the system. Other counties are investigating the possibility of using this procedure.
        It has been my privilege to serve as one of the Special Masters. I have been interested in this area of the law since law school. I have also worked with victims of domestic violence in my position with the Family Law Center of Wayne County Neighborhood Legal Services and the State Bar Task Force on Domestic Violence.
        The first time I put on that black robe, walked into the courtroom, and heard the bailiff say "all rise," a wave of nervousness came over me. I turned to take the steps to the bench and promptly tripped on the clerk's dias, nearly falling on my face. I then proceeded to call the attorney for the Petitioner 'your honor.' You can imagine the strange looks the attorneys gave me. My nervousness was soon forgotten as I listened to the parties, and used my knowledge of the law, my considerable life experience, and 'common sense' to make the recommendation to the court. As I said before, it is a privilege to perform this service as a Special Master and to be able to participate on the front lines in diminishing the frequency and severity of domestic violence. Dorothy Hague is a Family Law attorney at Wayne County Neighborhood Legal Services. You can reach her by email at dhague@mplp.org or phone at (313) 962-0466 x213.     
 
 

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