The South Carolina chapter of the NAACP told the Fourth Circuit in a brief filed Monday that a district court misapplied the 1941 U.S. Supreme Court holdings in Railroad Commission of Texas v. Pullman Co.
in ruling that the law didn't need to be blocked because the advocacy organization could go to the state's highest court and ask that the statute not apply to the program."The chilling effect of South Carolina's prohibition of the unauthorized practice of law is ongoing, and Plaintiffs' need for an injunction remains live," the NAACP said. "The district court's decision to abstain under Pullman does not negate that ongoing harm."
In its brief, the NAACP said that the South Carolina Supreme Court has held that the statute is applied case-by-case, but state justices have ruled that programs similar to the advocacy organization's eviction-help effort violated the law.
Although the district court didn't order a preliminary injunction of the law as applied to the NAACP's program, the organization said the court did find that tenant-advocates' free speech rights were being chilled by the statute.
The state has done little to defend the law as it applies to the eviction-help program other than to say the NAACP should be forced to go to the South Carolina Supreme Court before it brings a case in the federal court system, according to the brief.
The NAACP argued that, with the state court's record of ruling similar programs have violated unauthorized legal advice statute while a federal district judge had found the advocates' free speech rights had been chilled in the current case, a block of the law needed to be ordered by Fourth Circuit.
The district court had decided that the request for an injunction wasn't relevant if the South Carolina Supreme Court could allow the program and halted the lawsuit while the NAACP petitioned the state court, according to the brief.
The NAACP contended that it is still entitled to a block of the law while the state court mulls its decision.
The advocacy organization also asserted that it has satisfied all the required elements for an injunction in showing it is likely to succeed in its suit, it is being harmed and that it is in the public interest to uphold free speech rights.
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 in March and asked for a preliminary injunction against South Carolina's Code of Law section 40-5-310, which states only lawyers can give legal advice, being applied to the advocates.
In its brief, the NAACP stressed what it described as the harm of an "eviction crisis" in South Carolina in which there is a "critical shortage" of attorneys who are able and willing to represent tenants, even tenants who could win their eviction cases.
The organization said it wants to step into the attorney gap through its Housing Advocate Program but has been thwarted in starting up the initiative because of the threat of felony convictions and five-year prison sentences under the unauthorized legal advice law.
Bill Powell, who is representing the NAACP, told Law360 on Monday, "The vast majority of tenants facing eviction in South Carolina do so without the help of a lawyer, and they desperately need basic legal advice about how to assert their rights. In this appeal, the South Carolina NAACP and its members seek to enjoin the state's unconstitutional criminalization of their speech and association, so that they can immediately begin providing tenants this vitally important advice."
The program was vetted by Mark Fessler, a deputy director at South Carolina Legal Services and one of South Carolina's leading eviction-defense lawyers, and professor Elizabeth Chambliss, director of the Center on Professionalism at the University of South Carolina School of Law, according to the brief.
The South Carolina Attorney General's Office did not respond to request for comment Monday.
The NAACP is represented 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.
--Editing by Jill Coffey.
For a reprint of this article, please contact reprints@law360.com.