Facing a future without moratoriums, civil rights lawyers, housing advocates push for right to counsel
Despite moratoriums enacted at the federal and state levels, landlords are using exceptions to file eviction cases in New Haven. The number of cases will likely increase over the next three months as eviction moratoriums come to an end, leaving as many as 39,000 Connecticut tenants vulnerable to eviction, according to a December United States Census report.
The possibility has attracted the attention of local civil rights attorneys, many of whom have begun to lobby for a “tenant’s right to counsel.” Unlike criminal cases, defendants in eviction cases — which are considered civil cases — are not guaranteed the right to an attorney. Nationally, landlords employed lawyers in 90 percent of eviction proceedings in 2019. In comparison, tenants found legal representation in only seven percent of these cases.
“Our justice system is not just — it is a truth that does not get spoken often enough,” Kelly McConney Moore, the interim senior policy counsel for the American Civil Liberties Union of Connecticut, wrote in a testimony to the Connecticut General Assembly’s Housing Committee. “One step towards remaking our society as a more just one is to ensure that people can access lawyers when their fundamental rights are on the line.”
On March 4, the Housing Committee held a public hearing to discuss a bill that would establish a statewide right to counsel in eviction proceedings. Housing advocates are largely in favor of the bill, which many small landlords see as unfair or not financially viable.
Evictions persist despite moratoriums
Two eviction moratoriums have affected New Haven residents since the pandemic first hit.
Connecticut’s moratorium ensures that landlords cannot file for eviction unless residents owed rent before March 2020; owed six months’ rent or more due on or after March 1, 2020; are a “serious nuisance”; or if a landlord wants to use the rented place as their primary residence. This eviction moratorium has been extended until “the end of the public health emergency,” which is currently set as April 20, 2021.
The Centers for Disease Control and Prevention have also enacted a moratorium. Tenants are ineligible to be evicted if they deliver a declaration to their landlords indicating an inability to pay rent and meet specified conditions. Exceptions to this moratorium exist if tenants are involved in criminal activity, threaten the health or safety of other tenants or break the rules of their lease. The federal moratorium has been extended until at least March 31.
Still, New Haven residents are facing eviction proceedings under these implicit and explicit exceptions. From the beginning of the Connecticut moratorium to the end of 2020, 31 eviction cases were filed in New Haven.
Civil rights attorney Alex Taubes LAW ’15 said that some landlords are employing the “serious nuisance” exception against tenants loosely at their discretion.
Taubes told the News that he worked with a New Haven mother who had an eviction case filed after she tried calling the police when home invaders were attempting to break down her door.
“The landlord is trying to create allegations of nuisance based on these incidents happening over and over again but it’s really largely the problem of the landlord failing to provide adequate security measures in the apartment,” Taubes said.
Taubes added that he believes the “serious nuisance” exception is an example of the racial inequity in civil procedure. Taubes said he believes people of color are more likely to have their behavior called a “nuisance” and have the police called on them.
According to research from the American Constitution Society, “policing-based housing policies can lead to exclusions or evictions because of police contacts resulting from the weaponization of police by community members suspicious or resentful of people of color, solely because of their race.”
Often, Taubes added, an incident where the police were called is used as evidence to evict on the count of tenant “nuisance.”
“It can sometimes be explicitly racist and retaliatory,” Taubes said, “and sometimes, it’s more subtle, but the backdrop of racist enforcement of housing laws is very much still with us.”
According to Nathan Leys LAW ’20, a Liman Law Fellow for the New Haven Legal Assistance Association’s Housing Unit, the declaration under the CDC moratorium requires tenants to do as much as they can to pay their rents in full and on time. However, Leys said he believes judges have “nitpicked” the financial actions of tenants when judging whether they made their best effort to pay rent in completion. He told the News of a client he had helped who decided to gift her children $50 of Christmas presents instead of paying late rent to her landlord, which he believes almost got the family evicted. The client’s case is still pending.
“There are judges who will hold that the CDC moratorium doesn’t apply because they think people haven’t been trying ‘hard enough,’ and it’s not clear what hard enough really is,” Leys said.
Addressing financial and fairness issues
The divergence in state guarantees of legal representation between criminal and civil proceedings has its roots in Supreme Court precedents, according to Leys.
In 1963, the Supreme Court headed by Chief Justice Earl Warren ruled in the case Gideon v. Wainwright that all state courts must appoint attorneys for defendants in criminal cases who could not afford counsel. While defendants in civil cases did not receive the right to counsel following this ruling, efforts in subsequent decades attempted to extend this right. In 1981, a Supreme Court headed by Chief Justice Warren E. Burger ruled in Lassiter v. Department of Social Services that courts only need to provide a defendant access to public counsel if the case risked the individual’s physical liberty with jail time. According to Leys, the precedent set by this ruling led to an enumerated difference in how the state treated defendants in civil cases as opposed to criminal ones.
As policymakers reconsider the right to counsel in civil suits, they must also consider the financial feasibility of such a decision.
“The big answer for how you pay for it is, ‘How do you not pay for it?’ because the cost-savings of right to counsel are so immense,” Leys said.
Leys cited a study conducted by accounting firm Stout Risius Ross that compares the cost of providing legal services to tenants facing eviction to the dollars saved in social services following its implementation. In Baltimore, for example, every dollar spent to provide public counsel to tenants saves $6.24 for the city and state. Leys stated that even though the legislature bears the cost of investing in the program, the city and the state could benefit from it in the long term.
Though Leys recognizes anecdotal instances of tenants who decide not to pay their rent even though they are financially stable, he believes that it is “deeply irresponsible” to be making policy based on moral arguments from anecdotal data when the “moral question is much more complicated.”
At Thursday’s hearing, tenants including New Haven resident Ashley Donea Blount spoke in support of the Connecticut bill and described their experiences facing eviction.
“I remember not having anywhere to go when I was served with an eviction notice.” Blount said in her testimony. “I felt deep embarrassment and shame moving from house to house with bags and bins filled with my belongings. Some nights I slept on couches or in my car because no space was permanent.”
The New Haven-based grassroots organization Black and Brown United In Action expressed support for the bill in the Connecticut General Assembly, saying that the legislation was particularly important given the COVID-19 pandemic.
“Eviction and housing displacement are particularly threatening to individual and public health during a pandemic,” Black and Brown United in Action wrote in their testimony. “Eviction is likely to increase COVID-19 infection rates because it results in overcrowded living environments, doubling up, transiency, limited access to healthcare, and a decreased ability to comply with pandemic mitigation strategies.”
Other heads of organizations including Sal Luciano, president of Connecticut AFL-CIO, Liam Brennan, executive director of Connecticut Veterans Legal Center, and Kelly McConney Moore, interim senior policy counsel for the American Civil Liberties Union of Connecticut, also added their support at the hearing.
Many landowners, including President of the Connecticut Coalition of Property Owners John Souza, spoke at the hearing in opposition to the bill, saying that it would make it “harder for landlords to operate.” Souza said state efforts should instead focus on supporting the construction of more housing.
“All my experience with the housing system, you don’t really need a lawyer to go in there and say, ‘I’m sorry, I was sick, and I want to make an agreement.’” Souza said during the hearing. “The landlord is happy to have you.”
He went on to say that landowners do not want to go to court and spend money on hiring a lawyer.
The city of New Haven passed the Coronavirus Assistance and Security Tenant Landlord Emergency, or CASTLE, Program and Eviction Resolution Fund last year. The programs seek to offer financial support to tenants facing eviction. CASTLE provides up to $3,000 to pay COVID-19 back rent. The Eviction Resolution Fund pays for legal support for eligible renters in housing court.
At the federal level, U.S. Rep. Rosa DeLauro of New Haven also introduced a federal Eviction Prevention Act last year to provide legal representation for people in evictions who make 125 percent or less of the federal poverty level.
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Correction, March 6: A previous version of this article incorrectly stated that Taubes is a former mayoral candidate. The story has been updated.