Richard Rothschild oral history, 2014

Served his career at the Western Center on Law and Poverty. Starting 1984, was Director of Litigation and worked important cases on indigent healthcare cases and general relief.

Oral history details

Storyteller: Richard Rothschild
Interviewer: Houseman, Alan
Date of interview: Oct 7, 2014
Where relates to: California
Topics: Poverty law and Support centers
Law type: Civil
Collection: NEJL
Georgetown Law Library link (possible video):
Length: 0:39:21

Full text of transcript

Download PDF: Transcript

Consortium for the National Equal Justice Library
Oral History Collection
Interview with Richard Rothschild
Conducted by Alan Houseman
October 7, 2014

AH: This is an oral history of Dick Rothschild, the interviewer is Alan Houseman. The date is October 7th, 2014. Dick, tell us a little bit about your background, where you went to law school, college, grew up, and then we’ll get into your work here at the Western Center.

RR: Okay, well I grew up in New Jersey. I went to Yale college, and USC Law School. After law school, I clerked for California Supreme Court Associate Justice Stanley Mosk, and I answered an ad in the legal paper for the Western Center. I interviewed here, and I’ve worked here at Western Center on Law and Poverty ever since. Since 1984, I’ve been Director of Litigation.

AH: And who was the director of the Western Center when you first came?

RR: When I first came, it was Dan Luevano.

AH: Great. All right, you’ve been Director of Litigation here a number of years. You’ve been a staff attorney here. You’ve worked on many, many, many cases. So I want you to talk about some of the key cases that you’ve worked on and the impact of those cases on the lives of poor people. I’ll let you pick which ones you want to start with. Then I want to talk a little bit about how you view your work here and your role within California and nationally. Then we’ll see where this goes. I will not lead you too much because I’m not sure enough about these cases to know which ones are the most important, or how you would view them. I’ll let you talk about some. I also want to get into the LSC funding issues a little later. But let’s start with the more substantive stuff.

RR: Well, most of the cases I worked on were started by other people. I should say that. Probably the most famous case I worked on, I certainly didn’t start and certainly was not responsible for the major victories in. That was Serrano versus Priest, which was the case where the California Supreme Court held that the way that California then financed its kindergarten through 12 school system unconstitutionally provided unequal opportunities for students in low property wealth districts. I worked on part of the attorney’s fees aspects of that case where the court also established the precedent of the private attorney general rule, which shifted fees when plaintiff’s won important cases that benefited large numbers of people. That was codified by our private attorney general statute code of civil procedure section 10-21.5.

RR: The merits part of Serrano that I worked on were not as successful. It was sort of an enforcement action that went on for many years. But I think the case is significant mostly for some of the equal protection principles that it established, and also for the attorney’s fees part. All that is still good law. The case did result in some equalization — a much more equal school finance system.

RR: Other cases, some of my favorite cases, are the indigent healthcare cases and the general relief cases. One of the general relief cases, Nelson versus Board of Supervisors, held that a county could not establish a fixed residence address requirement. So, if you didn’t have a fixed residence in San Diego County, you could get on general relief, which is the program of last resort for extremely poor people. You could get on general relief for 60 days, but if you didn’t have a fixed address by then, they kicked you off. For years it had been the law that this was okay. In Nelson, the Court of Appeal held that it no longer was okay.

RR: Another of the cases that I enjoyed the most was a case that ended up being called Hunt versus Superior Court. Sacramento County, in the midst of a budget crisis, decided that it would no longer provide indigent healthcare to people whose income was above the limit for general assistance — something like 300 dollars per month — and would cut those people off entirely. We got a preliminary injunction stopping that. By we, I’m pretty sure I wasn’t involved at that point, it was Melinda Byrd and attorneys at Legal Services of Northern California. The county took it up to the Court of Appeal, which sat on it for four years. Then the Court of Appeal upheld what the county did. This is one of these instances where the opinion was so out of line with what the law was that, within the course of seven weeks, our Sacramento office got legislation saying that the law does not mean what the Court of Appeal in this case said it meant.

RR: So the California Supreme Court said, “Okay, we’ll take your petition for review, we’ll remand it back to the Court of Appeal.” The Court of Appeal then held that what the legislature did was unconstitutional, because the legislature can’t tell us how to construe the law. So then we had to petition the California Supreme Court again, which this time granted review, and unanimously held that indeed the legislature can tell the courts how to construe the law, at least for the future.

RR: It’s hard to judge which of these cases that we’ve worked on affected the most people or helped the most people. Those are two of my favorite cases. I guess that’s about all I could say.

AH: I noticed in your bio that you had also worked on Pierce versus Underwood. So tell us a little bit about that, it’s a case I happen to know.

RR: Okay. Well my role in Pierce versus Underwood came rather late in the case, but I’m familiar with the case. It was a case where federal law required that Section 236 housing projects had to give utility allowances for tenants, and the Nixon Administration essentially impounded the money for that program. Throughout the country, legal services programs brought lawsuits. By the time we filed I think there were 9 or 10 successful lawsuits on that. We filed a nationwide class action, and the District Court ruled in our favor. The 9th Circuit ruled in our favor. The Supreme Court granted certiorari and a stay. And then I believe it was the new administration (I’m not sure if I have the timing right) that settled the case essentially in our favor.

RR: Two of our attorneys, Mary Burdick and Pat Tunoso (later Pat Sternoven), essentially went around the country publicizing the settlement and it ended up in a huge amount of money being distributed in retroactive benefits to poor tenants. Then the case made law on attorney’s fees because the Federal Equal Access to Justice Act had recently been enacted. And under the Equal Access to Justice Act, the federal government is required to pay fees when it loses cases, unless it can prove that its actions were “substantially justified”. This of course was a term that was not defined in the statute. This time we made it up to the Supreme Court. It was the first case to construe the Equal Access to Justice Act. Mary Burdick argued the case so you can ask her about that.

RR: Justice Scalia, of all the people, wrote the 6 to 3 opinion in our favor on entitlement to fees. The opinion says that “substantial justification” basically means reasonable. But you don’t have to prove that the government’s position was frivolous. The opinion also said that under most situations you should defer to what the trial court decides on that issue.

RR: The opinion wasn’t so good on the amount of fees. The statute said you get 75 dollars per hour, when it was enacted. It’s since been moved up to 125 dollars per hour. It can be increased by the cost of living since enactment. The most recent enactment was in March 1996, so I think it’s up to about 180 or 190 dollars per hour. Not exactly market rates, unless you can prove that there was a limited availability of qualified attorneys to do the case. The court in Pierce versus Underwood held that just being real good litigators doesn’t qualify you. So the lower courts have struggled with what gets you market rates. But that was fun. Mary argued it. I got to be second chair. I think I got a pen, I think I’ve lost it.

AH: Have you argued any in the Supreme Court?

RR: No, I’ve argued three times in the California Supreme Court, not in the US Supreme Court. Given its current composition, I’m not even sure that would be all that much of an honor.

AH: Right.

RR: It would be an honor, but I’d just as soon decline it.

AH: So before we get to the LSC case, describe a little bit your role as an attorney with the Western Center on Law and Poverty. In your relationship both internally, and to other legal aid programs around the State of California.

RR: Western Center is a state support center — one of the first, one of the largest, maybe the largest. We take our support role very seriously. A huge part of our job, and my job as well, is just taking day to day calls from attorneys in the field. Another part of our role is training. All of us do our share of trainings. We organize task forces. We have a health and welfare task force and we have a housing task force. Those are some of the things we do at the support center. We also co-counsel with the field programs. I’m not sure, is that answering your question?

AH: Yes.

RR: Okay.

AH: And what is your role here as Director of Litigation?

RR: As Director of Litigation it’s partly to make sure that the trains run on time. I play a role in almost all of our cases, but it can vary from major to fairly insignificant. I like to see all the pleadings and all the cases, but there are cases where we have really experienced attorneys that don’t need me as much, and we have cases where I’m needed more.

AH: Well let’s turn to the Western Center on Law and Poverty versus the Legal Services Corporation. Since this is the first time we’ve ever talked about this case, we need a little background about it, and then a little bit about what happened and how we got to where we got in this.

RR: Okay. Well the background begins — I might get the dates slightly wrong — first California voters passed Proposition 13, which placed severe limits on property taxes. So that cut down the overall revenues for the state. About two years later, Proposition 9 was proposed, which would have cut income tax revenue severely. Our clients and our attorneys recognized that all of the programs that we fought for were in jeopardy. I don’t know the details of who contacted whom, but we got a grant from the Legal Services Corporation, then run by Carter appointees, to do some advocacy on Proposition 9. The attorney, Alan Rader, wrote a very well written succinct memo explaining, in his view of the law, what we could legally do and what we couldn’t do.

RR: We got this grant from LSC. They monitored the grant. Alan sent in reports. They applauded us all the way. Proposition 9 was defeated. I have no idea what effect we might have had on that. And then, again, I don’t know how many years later, maybe a year or two later, LSC invited Alan to participate in some kind of training event at its then Denver regional office. Alan made a speech at the Denver regional office. I don’t remember the speech. I don’t think he said we were single-handedly responsible for defeating Proposition 9, but probably puffed it up a little bit. And that was that.

RR: Then when the Reagan people took over LSC, they staged a nationwide simultaneous raid on all the regional offices. They found this tape of Alan’s speech. At some point it made it to the Government Accounting Office or some federal agency, which said it looks like it was illegal, but it also looks like you can’t do anything to the Western Center since LSC approved it. We thought that kind of ended it. Then we got sued by Howard Jarvis, the architect of Prop 13 and Prop 9. He sued us, he sued LSC, and he sued the federal government. So it was Jarvis versus Regan, R-E-G-A-N, the then-Secretary of the Treasury. That got thrown out of the federal district court. It got thrown out by the 9th Circuit. It never went much further. I think he accused us of RICO violations, as I recall.

RR: But all this tended to up the profile of what we did. I believe in late December 1983, just when we were transitioning from executive directors, from Alan Rader to Mary Burdick, we got a notice from LSC that they were defunding us. And if we wanted to go through the motions we could ask for a hearing. But they were defunding us and we had I think 30 days or 60 days to close shop. At the time, we could survive and meet our payroll for about 30 or 60 days. We initially tried to go to federal district court in DC to enjoin the proceedings. The federal district judge said it was premature.

RR: So we asked for a hearing. The LSC appointed as a hearing officer retired Judge Ralph Drummond, who upon his retirement, was given an award by the FBI as the toughest judge in America. So we didn’t think we had too much chance at the hearing level. We went about searching for pro bono counsel, and our then-board chair John Brinsley, who had represented us in Jarvis versus Regan, said had too many schedule conflicts to do it. I said, “John we’re looking for somebody with gray hair.” And he said, “Max Gillam has gray hair.”

RR: Max Gillam was a legendary anti-trust lawyer. He worked at a major law firm, Latham and Watkins. He just liked doing trials. In fact, and the reason that he was able to assist us was that he had a pro bono case where he was going to represent a federal defendant on a triple murder and it settled. So he had some time to do us. So he was not a typical big firm lawyer. I remember we were sitting around the Brinsley conference table, and we explained to Max that our strategy was well of course we’re going to lose at the hearing level, but we’re confident that we can get to the federal district court and they will overturn this. And he said, “No, you’re not going to lose at the hearing level. You did nothing wrong and we’re going to win this.”

RR: We had the hearing in front of Judge Drummond. The part I remember is that Mary and I did most of the pretrial and did the pre-hearing briefing. Then we asked a fairly young attorney at their office, Melinda Byrd, “Melinda, can you get us some declarations?” Melinda is like the world’s best declaration person. Melinda’s declarations in cases on the merits can make you cry. She just really knows how to do this. She went around to all the legal services programs and the attorneys that she knew we worked with, and they just wrote these wonderful declarations. We got some from judges as well, and opposing counsel, and so on.

RR: We were at the hearing and we tried to introduce all our evidence and the outside counsel for LSC objected because, “We never said Western Center doesn’t do good work, we just said they acted illegally and we’ve got to shut them down.” And Judge Drummond said, “Well let’s hold off on that.” So the hearing went forward. At a certain point, the LSC attorney decided to get testimony from somebody — really a third or fourth level LSC official. They took him to the hearing so they had to use him. He said, “If Western Center loses its funding there will be no diminishment in legal services in California.” And Max picked up this large notebook filled with declarations, brought it over to Judge Drummond, and said, “Your honor, we now have a factual issue.”

RR: And Judge Drummond just sort of shook his head like, how dumb can these people be, and he said, “Yes, you do.” He issued his decision a couple weeks later. He didn’t rule on whether what we did was legal. As you know better than anybody else in the world, whether it was legal or not was reasonably close. The LSC statute had a lot of “on one hand” and one “on the other hand.” So somewhat reasonable people could go either way on that. But he said he completely bought our argument that everything we did was paid for, encouraged, applauded, ratified and so on by LSC and therefore principles of equitable estoppel should apply. And he also agreed with us that it would be a crushing loss to California legal service programs if Western Center did not exist.

RR: One of our pieces of evidence was that LSC said, “Well if Western Center’s defunded we’re just going to give the support money to five or six local programs to do the support work.” All the programs said, “We don’t want the money. It’s just not a good use of money, Western Center should continue.” I think Judge Drummond was influenced by that as well. So, stupidly, we thought maybe that would end the matters. But of course the LSC president who initiated the action in the first place got to decide what to do with Judge Drummond’s decision, and of course he reversed it.

RR: And so we had to go back to federal court. We briefed it again and this time we got a preliminary injunction and later a summary judgment in our favor. I believe LSC may have initially appealed, but during those days there were a lot of personnel changes at LSC. The new LSC administration (which may have been just as hostile as the old administration) still appointed by Reagan people, decided they didn’t really want to deal with the dirty laundry of the people they were replacing. We settled while the case was on appeal. In the meantime, Senator Alan Cranston (D-CA) got through a piece of legislation that essentially said in so many words that LSC could not attempt to defund the Western Center based on the actions that it had tried to defund the Western Center before on.

AH: Well that’s a fascinating story about that case, and about the context of that case. So thanks a lot for that. As a long time litigator in legal aid, and a person very close to the substance of the work that legal aid attorneys do, how would you describe the changes that have occurred, if any in your view, over the last 20 years, from 1996. We can go back further, but let’s just pick 1996, when the restrictions came in. Or if you want to expand that, that’s fine. But what’s your sense of those changes that the Congress put in effect in 1996, the Gingrich Congress as it is called, if any, on the practice. How would you think about those as somebody that’s in the middle of the advocacy work?

RR: I would say that the restrictions that the Gingrich Congress placed effective 1996, were one of two or three major factors in leading to a decrease in experienced litigators among legal services attorneys. We just don’t have as many experienced people. I think partly it was the ban on class actions maybe, which is a little less hurtful in California than other states, but is still a problem. Partly it was the ban that lasted for 13 years on court-ordered attorney’s fees. That had an effect. Ironically enough, the success that the Western Center Sacramento office had both in the California legislature and with the agencies that we regularly deal with in legislative and administrative advocacy (and probably things that were written in academia) caused a lot of people coming out of law school to say, “Well this is what I want to do, I want to be a policy person.” So there’s a lot less emphasis on litigation than there was before, which in some ways is good and some ways is not so good.

RR: I think as I try to remind people from time to time, that the reason that those nice people at the Department of Healthcare Services still talk to you is that they may get sued. If they never get sued, they’re probably going to talk to you a little bit less. But the balance has definitely shifted. It used to be that down here in LA we did litigation, and in Sacramento we did everything else. And now I think the people here do a variety of things and there’s less litigation.

AH: Now, in that same time, Western Center lost LSC funding. Yet you’re still alive, and a major institution in the state and nationally. What were your experiences when the loss of funding occurred and what’s your feeling now about the funding. I know you’re not the fundraiser but what’s your feeling now about what that environment has been, for somebody that was in the middle of it? The Western Center persevered, which many organizations didn’t.

RR: Well, I think we probably would be better off as LSC funded without the restrictions, but I think we’re better off without the restrictions. I’d rather be a program that had to scrabble for money than still be subjected to those restrictions. Of course, as you say, I’m not the person who has to raise the money, except with court-ordered attorney’s fees.

AH: Right. I understand that.

RR: Right. I think that we survived is a tribute to Mary Burdick. After the defunding, after the individual defunding crisis, was prescient enough to realize that this isn’t going to last forever. I think other people thought, well we got through that, what the heck. And she managed to build a very healthy reserve, even when we were getting LSC funding, and even when I think LSC rules at the time limited how much money you could keep from the money that they gave you. So it was quite a feat. That plus continuing to lobby at a time when LSC was watching our every move. Our annual auditors always included an ex-FBI agent. I mean they looked through our books. We were able to prove, and this was before we had the so-called all funds restriction, yeah we did this lobbying but it was with IOLTA Money, or we did this lobbying with private foundation grants.

RR: I think we did pretty well on private fundraising, we did pretty well on foundations, and we did pretty well on attorney’s fees. And that, combined with the reserve, enabled us to survive, but not without lay-offs.

AH: You also, besides continuing your litigation and your advocacy, have continued to be a major support center for the programs in California.

RR: That was one of the major changes for my first couple of years here. At a certain point, pretty early on when I started working here, we decided that that’s what we are, we took that seriously, and we’ve taken that seriously for 30 or 40 years. We welcome the calls, we do. We welcome the task forces. We welcome the trainings.

AH: You’ve won a number of awards, or several awards I think. And I know these are not the kind of things that people want to talk about all the time. But I think it would be helpful just to mention a few of them in this oral history, because you’ve been a pretty significant player as a lawyer in California, both with legal aid and in the broader legal community. So, I know you’re humble, but mention a couple of those. I could lead you but I’m not going to.

RR: Okay. I guess the two major awards I won were in the last five or 10 years. One was the state bar Loren Miller Award, which is the state bar’s highest award for public interest lawyers. And the other was LA County bar’s Shattuck-Price Award, which is one of, I guess, that association’s highest honors.

AH: What thoughts do you have, I mean we’ve talked a little bit about this but, what thoughts if any, do you have about the future of poverty law advocacy? Open-ended sort of vague question, but…

RR: I’m not good at open-ended questions.

AH: Well okay so…

RR: So direct it a little.

AH: All right. You mentioned the concern you have that we’re losing major litigators within legal aid.

RR: I also have a hope that that might be changing. On the principle of follow the money, I think the programs are beginning to realize that attorney’s fees can be a major source of revenue. At least that’s my hope.

AH: And that means I got to get some good litigators.

RR: Yes.

AH: So, maybe … let me ask it this way … What would you like to see happen in civil legal aid from a major litigator’s point of view that’s not necessarily happening now?

RR: Assuming that the class action restrictions remain in effect, well, obviously get rid of the restrictions. But assuming that the class action restriction in particular remains in effect, what I would like to see happening is what I’m completely unequipped to do myself but I would like to see others do, which is to do much more community organizing with the hope that there would be organizations … in California there just aren’t enough organizations you can sue on behalf of. Once you have an organization, you can usually get a lot of the broad-based relief that you can get from a class action. You usually can’t moot out an organization by buying it off, and the organization doesn’t all of a sudden move out of state. I would like to see more organizations that were not shell organizations, real organizations that become actively involved in litigation. I gather that does exist more in other states than it does in California. I’d like to see more of that happen in California.

AH: Okay. Do you have any… I’m sorry, keep going.

RR: I’d like to see the people think more, in the local programs as well as the support center, in terms of what can I get out of this case other than for the client? And you know file. In California there are ways to get broad-based at least prospective relief without filing a class action and I’d like to see more of that done at the local level. I would also like to see more people file appeals. As Earl Johnson has pointed out, quoting a different source than himself, during the 1970s, during not just the Warren Court but with the Burger Court, legal services programs were among the most active litigators of the Supreme Court.

RR: They had, outside of the Solicitor General, they had the best record in getting cases heard, and they had a huge winning record once they got heard. Even again, with the Burger Court as well as the Warren Court. So I don’t know, we’re not going to return to that particular statistic. But I think you can achieve more through appeals — I say that because that’s what I like to do — than what legal service programs are currently doing.

AH: Okay. Do you have any final thoughts about your work or your cases that you’ve done that you’d like to mention? I know it’s an open-ended question.

RR: Other than it’s been rewarding and gratifying work, and I’m honored to work with the people I work with. I don’t know what else to say.

AH: Okay. Let me just pin it down because I think you just answered it though, why you’ve stayed in this role as a major litigator in legal aid?

RR: Well I enjoy the work. We’re doing good. It’s intellectually challenging and you work with great people.

AH: Great. Well thank you Dick, this has been wonderful. I appreciate it very, very much.

RR: Okay, well thank you. Yeah, I don’t do well with open-ended questions.

AH: I know.