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Friday, March 8, 2019

New Jersey Black History Month, Unsung Hero Larry DeCosta, Part III

This article concludes the discussion of wide-ranging influence of a remarkable unsung hero, Larry DeCosta. The exploration of the life of this prodigious champion for those who could not speak up for themselves appears in Part II of this trilogy published February 26, 2019.

Champion of Equity and Fairness

Larry DeCosta, as Executive Director of Camden Regional Services, believed in equity and fairness. As an attorney he frequently would argue “equitable” principles as well as “legal” principles” to obtain relief for his clients, whether they be minimum wage hotel housekeepers or indigents. This was demonstrated in the landmark NJ Supreme Court case, Community Realty Management v. Harris, 155 N.J. 212 (1998), which changed the law in NJ and throughout other states in the US. The difference between applying “equitable” principles and “legal” principles is that “equity” is justice administered according to fairness as compared to strictly formulated, accepted common law principles upheld by the courts, or compared to “legal” written statutes, administrative codes and regulations. Mr. DeCosta, would construct equitable arguments in legally complex cases, when there was no defined boilerplate obtainable relief available as defined in legal statutes and codes or common law. Equity is sometimes considered a fallback position, when one cannot ask for the Court’s intervention by citing codes, statutes or regulations, or applying accepted common law principles.

Many of the persons who came to Camden Regional Legal Services were so poor and in such unique situations, that there was no legal way to find relief for them through the courts, without asking a court to apply equitable principles. Mr. DeCosta would petition the court for equity to prevail in complex legal matters, when there was no specific legal argument that he could cite. The term “equity” denotes the spirit and habit of fairness, justice and right dealing which should regulate the actions of persons in a civilized society. Equity is a body of jurisprudence different in its origin, theory and methods from the common law. It is a system of jurisprudence collateral to natural justice and fairness, and independent of statutes, the object of which is to render the administration of justice more complete by affording relief where statutes or the common law are inadequate to do so.

What distinguished Larry DeCosta’s application of equitable arguments from those of others who sought relief in the courts by arguing for equity, is that Larry DeCosta’s work had the far-reaching effect of the transmutation of equity principles into the court-ordered creation of new legal codes in NJ and other states.

By way of example, in Larry DeCosta’s win at the NJ Supreme Court in Harris, by raising  arguments for equity and arguing them so eloquently,  the NJ Supreme Court in its final decision, not only reversed the Trial Court and Appellate Court decisions in this matter, but the Court went further and took the unusual step of ordering that new legal codes and procedures be incorporated into statutes, in order for a landlord to dispossess a tenant of the tenancy. After the Harris decision was handed down, other states followed suit in changing their rules.

It is highly unusual, even when equitable principles are successfully applied, for any resulting court decision to order that written legislative code be created in response. A brilliant legal mind, Larry DeCosta clearly could have received higher financial compensation had he stayed in the private practice of law. However, the Harris case is but one example of his wins at the NJ Appellate Court and Supreme Court, and of Larry DeCosta’s dedication to help the poor, fulfilling what he believed to be his stated life’s goal to follow the precepts of Proverbs 31:8, 9 (NIV), “Speak up for those who cannot speak for themselves, for the rights of all who are destitute. Speak up and judge fairly, defend the rights of the poor and needy.”

Community Realty Management v. Harris

In the Harris case, Mr. DeCosta represented a poor woman who had gone to court pro se and had relied on the Court Clerk’s incomplete instructions and advice from her landlord’s attorney who wanted to dispossess her of her tenancy. The New Jersey Supreme Court, based on Mr. DeCosta’s arguments, reversed the Appellant Judgment upholding the trial court and the judgment for possession and the warrant of removal were vacated because they were inequitable and unenforceable.

Initially, the Plaintiff landlord had filed for summary proceedings in the lower court to dispossess defendant tenant and her two minor children of subsidized housing for non-payment of rent. The tenant appeared pro se and entered into a consent judgment for possession. Several days later, after she paid the money demanded by the landlord, including back rent, attorney's fees, and late fees, she signed a pro se consent agreement, staying removal through the end of the year. When defendant then failed to vacate at the end of the year, a warrant for removal was obtained against her and she petitioned to vacate the judgment for possession and warrant of removal. The Appellate Division denied relief and affirmed the lower court.

On review in the NJ Supreme Court, with Mr. DeCosta representing the woman and her two minor children, the NJ Supreme Court reversed, applying the legal arguments and equitable principles that Mr. DeCosta had argued, and holding that the judgment for possession was unenforceable because equity would not permit the removal due to the plaintiff landlord's actions.

Mr. DeCosta argued that Burlington County’s Landlord/Tenant Court's eviction procedures violated the law and were unfair to pro se tenants. Specifically, Mr. DeCosta asserted that the eviction proceedings were contrary to the law because (1) landlords do not have to plead and prove "good  cause," a requirement for eviction under the Anti-Eviction Act, N.J.S.A. 2A:18-61.1, or provide an affidavit to evict pro se tenants; (2) the court permits judgments for possession to be entered without first requiring the landlord to establish the court's jurisdiction; (3) the court does not require the submission of a form of judgment or order containing "the recital that all parties have in fact consented to the entry of judgment or order in the form submitted" as required by Rule 4:42-1(d) and (e); and (4) the court clerk enters judgments for possession against pro se tenants without an affidavit required by Rule 6:6-3(b).

Mr. DeCosta also argued that the court's procedures are inherently unfair to pro se tenants. First, he contended that at the eviction proceeding on July 14, 1995, the court failed to inform tenants that they had until 4:30 p.m. that day to pay the landlord all rent due and owing. Second, the court permits the landlord's attorney to explain court procedures and the meaning of court terms to pro se tenants.

What Mr. DeCosta found to be the most egregious error, however, and one he eloquently argued, was his third argument in equity, that it is a failure of a court or judicial system to attain the ends of justice, when the Court Clerk directs pro se tenants to go to the office of their adversary and sign consent orders regarding stays of warrants of removal. Mr. DeCosta maintained that it is unfair for the Court Clerk not to explain to pro se tenants that they have a right to apply for relief from the judgment for possession. His client, Harris, insisted that because she did not understand the meaning of the terms "judgment for possession" or "hardship stay" she could not have consented to a judgment. Even assuming there was some degree of consent, Mr. DeCosta entreated the Court to invalidate the judgment because the landlord incorrectly advised her regarding the amount necessary to avoid a judgment for possession. Finally, Mr. DeCosta argued that the judgment for possession entered against Ms. Harris was invalid and that the lower courts erred in refusing to vacate the judgment for possession.

In response, the landlord Community Realty Management alleged that it acted in good faith and complied with all applicable regulations when evicting Ms. Harris. Community rejected Mr. DeCosta’s argument that the landlord improperly instructed Ms. Harris regarding the amount due and maintained that all the fees and charges demanded in its complaint were proper. Additionally, Community argued that the consent judgment for possession was proper because Ms. Harris fully understood her rights and chose to seek a hardship stay. Community maintained that Ms. Harris's situation was unexceptional and distinguishable from the circumstances in other cases.

The Court noted that Ms. Harris, defendant, being pro se, had not shown or given the required knowing and informed consent to enter into the judgment or stay order, and proper judicial procedures were not followed. The Court concluded by noting that removal was inappropriate where the judgment of possession was based on impermissible late fees and attorney's fees.

In a unanimous decision, NJ Supreme Court, Justice Coleman, J., writing for the Court summarized the issue before the court as follows:

This appeal involves a summary proceeding to dispossess a tenant for non-payment of rent. The appeal focuses on the adequacy of procedures to protect pro se tenants and considers whether the trial court abused its discretion in failing to vacate a consent judgment for possession pursuant to Housing Auth. of Morristown v. Little, 135 N.J. 274, 639 A.2d 286 (1997), and whether Burlington County's summary dispossess procedures adequately protect pro se tenants.

The Supreme Court held that the procedures followed by Burlington County did not adequately protect pro se tenants and the trial court should have vacated the consent judgment for possession signed by tenant Harris. The Court stated that summary dispossess proceedings based on late payment of rent are designed to secure performance of the rental obligation and are not intended to be used to evict tenants for unrelated purposes. The Court concluded that the evidence showed that neither the consent judgment, signed by the pro se defendant tenant, was entered with the requisite knowing and informed consent of tenant, a pro se party and that the judgment for possession was not in compliance with required procedures and was based on impermissible fees.

What is uniquely significant in this case, and what made this a seminal decision that other courts follow, is that the Court did not only overturn the Appellate Court decision which upheld the lower court, but it mandated in its Decision that to avoid unfair treatment of pro se tenants, the procedures for handling consent judgments or orders had to be changed to be standardized. It further directed that the Special Civil Part Practice Committee must propose appropriate out-of-cycle changes to the Rules. This would require a landlord to submit an affidavit establishing the jurisdictional good cause required by statute prior to the entry of a consent judgment or agreement in all non-tried summary dispossession cases.

The NJ Supreme Court also stated and admonished in strong language, that when a Court Clerk directs a pro se tenant to obtain information from the landlord to find out what they had to do to stay removal, it was procedure that NJ could no longer tolerate. It mandated the establishment of a procedure to have landlord/tenant courts provide information to pro se tenants through instructions from the court written notices. The Court ordered that the instructions should be standardized, and referred the matter to the Special Civil Part Practice Committee to draft a set of proposed instructions to be submitted to the Court along with the proposed rule amendments. As a result, standardized legal rules were established that had to be followed by landlords and the courts.

Thus, Mr. DeCosta’s arguments for equity were so complete and compelling, that they led to the State’s highest court to order that formal legal rules had to be amended and implemented for all other such cases current and going forward, a most unusual result. Other states followed the lead, Order and Decision of the Harris case, and formally amended their rules and refer to Harris in issuing their own decisions, such as the state of Maine issued Bench Memorandum for Residential Tenants. In New Jersey alone, after Mr. DeCosta prevailed on the part of Ms. Harris and her two minor children, eleven other NJ Supreme Court cases cited to the Harris decision, the NJ Appellate Court cited to Harris in sixty-one of its decisions, and the Federal Court cited to it six times.

Larry DeCosta Lived by the Credence That One Person Can Make a Difference.

Larry DeCosta told Ms. Harris’s prior attorney who was departing from Camden Regional Legal Services, that he promised to take Ms. Harris’s case all the way to the NJ Supreme Court if necessary, so that she and her two minor children would not be dispossessed. Many advised him against doing so, telling him that it was a losing cause that had no precedent in statute or common law, and that it would exhaust his time. However, Mr. DeCosta had the vision to see it was more than just a principle at stake, that it effected the daily life of this small family, and that many other persons and families would be unjustly dispossessed of the roof over their head, if someone did not commit themselves to work to have these practices brought to a halt state-wide. In the words of John F. Kennedy, “One person can make a difference, and everyone should try.”

Larry DeCosta devoted himself to those who lack the capacity to help themselves, and he willingly steadfastly did so without fanfare, making a difference in the lives of others, known and unknown, too numerous to count.

If you are being subjected to unlawful workplace discrimination, contact Hope A. Lang, Attorney at Law today for a free consultation. New Jersey employment attorney, Hope A. Lang, Attorney at Law serves clients throughout the state, including Bergen, Middlesex, Essex, Hudson, Monmouth, Ocean, Union, Camden, Passaic, and Morris Counties with locations in Southern, Central, Western and Northern NJ to meet with clients.



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