In the brief filed Monday, Arizona State University professor Rebecca L. Sandefur and 26 legal scholars said South Carolina faces an "increasingly acute crisis of access to justice," particularly in cases involving evictions: thousands of state residents become suddenly homeless every year, which impacts their employment, family stability and health.
Nonlawyers like the NAACP's housing advocates can make a difference by providing much-needed assistance to those people, the scholars said in the brief.
"The vast majority of South Carolina residents facing eviction cannot afford counsel and are unable to adequately represent themselves," the brief says. "For the thousands of individuals facing eviction actions who cannot afford counsel (or find pro bono counsel), representation by these nonlawyers is plainly better than no representation at all."
The presence of housing advocates is particularly needed in South Carolina, where a renter served with an eviction notice has only 10 days to either vacate their home or show cause as to why they should not be ejected.
The scholars — comprising professors at law schools across the United States and Canada — urged the U.S. Court of Appeals to instruct a lower court to issue an injunction preventing the South Carolina statute from being applied to the NAACP's eviction protection program. The amici said the NAACP's housing advocates needed to know "as soon as possible" whether they would be protected from sanction under South Carolina's unauthorized practice of law statute.
"Programs like that proposed by the South Carolina NAACP not only help the individuals facing eviction actions but also the courts hearing these cases and the justice system more broadly," the amici said. "Housing advocates are trained, supervised, and ready and able to provide these much-needed services."
Sandefur, who has served on a number of commissions exploring ways to improve access to justice in the United States and globally, told Law360 that since the 1970s, the number of lawyers in the country has quadrupled; however, access to justice indicators, including access to lawyers, have gotten worse. More people need attorneys they in turn cannot afford to pay for, and for a larger number of matters than in previous decades, she said.
"It's just clear that lawyers have not been able to scale, really, to the size of the need," she said. "What we're doing now has not worked. And so there are a number of us trying to think about other ways to scale up assistance to meet that really massive need."
Across the nation, nonlawyers assist people applying for SNAP or veterans' benefits, navigate housing courts, deal with Indian Child Welfare Act issues and obtain protection orders in situations involving domestic violence. The NAACP's housing advocacy program fits within that larger picture, she said.
"There's a lot of empirical evidence that shows us that these people can be effective," Sandefur said. "Thinking about this in an evidence-based way is going to be a really important part of how we move forward and find workable solutions."
South Carolina has one of the nation's highest rates of eviction judgments. According to data gathered by Eviction Lab, a Princeton University project, about 18% of renter households in Charleston have faced eviction over the past year, the brief says.
At the same time, South Carolinians face well-documented access to counsel issues. The state has the smallest average number of civil legal aid attorneys for every 10,000 low-income people in the whole country, according to a ranking compiled by the National Center For Access To Justice — which looked at all 50 states, Puerto Rico and the District of Columbia — that was cited in the brief.
A study by the American Civil Liberties Union, mentioned in the brief, found the lack of legal representation impacts racial minorities more severely, in particular people who are Black. Between 50% and 70% of clients facing eviction who seek representation are Black, according to the study.
In March, the NAACP and three of its eviction-help advocates sued South Carolina's top law enforcement official, Attorney General Alan Wilson, in the U.S. District Court for the District of South Carolina; they also asked for a preliminary injunction against South Carolina's Code of Law Section 40-5-310, which states only lawyers can give legal advice, in application to the advocates. A nonlawyer can be fined up to $5,000 and face up to five years in prison for violating the provision.
Under the civil rights group's program, lay advocates are trained to provide free and limited legal advice to people who are facing eviction in housing court.
But in August, a federal district court judge in Charleston, South Carolina, ruled the state's Supreme Court should decide the case and that a federal injunction was not needed while the case played out in state court.
U.S. District Judge David C. Norton shrugged off the request for an injunction as moot, citing the 1941 U.S. Supreme Court ruling in Railroad Commission of Texas v. Pullman Co.
, which laid out the principle — known as Pullman doctrine — that a federal court should not intervene in a case that a state court can easily settle under state law.Unsatisfied with that ruling, the NAACP took the fight to the Fourth Circuit, where it argued that Judge Norton misinterpreted the Pullman principle and that it was still entitled to an injunction halting the law. In making its case, the civil rights group said the South Carolina statute violates its housing advocates' free speech rights.
The amici are represented by Peter Karanjia of DLA Piper.
The NAACP is represented by Benjamin Adam Gifford, Amy Marshak, William Powell and Joseph Wilfred Mead of the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center, Joseph Rostain Schottenfeld and Glynnis Alexia Hagins of the NAACP and James Edward Cox Jr. of Wyche PA.
Alan Wilson is represented by James Emory Smith Jr. of the South Carolina Attorney General's Office.
The case is SC State Conference of the NAACP v. Alan Wilson, case number 23-1917, in the Fourth Circuit Court of Appeals.
--Additional reporting by Travis Bland. Editing by Caitlin Wolper.