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State eviction statute is focus of lawsuit

Plaintiffs allege Arkansas law criminalizes inability to pay rent, is unconstitutional by Tyler Wann | January 4, 2022 at 12:00 a.m.

A federal lawsuit is challenging Arkansas' criminal failure to vacate statute, arguing that the law is unconstitutional.

The lawsuit, filed in U.S. District Court for the Western District of Arkansas on Sept. 2, claims that Arkansas is the only state in the country that "criminalizes the failure to pay rent." Under state law, a tenant who is late on rent forfeits the right to occupy the property. A landlord can then give the tenant a 10-day notice to vacate the property. If they fail to vacate by the end of that time, the tenant can be charged with a misdemeanor and fined up to $25 for every day they stay in the property.

"There are many other types of contracts in the law, and in no other situation is the breach of a contract treated as a criminal offense unless there's fraud involved, and our statute doesn't address fraud at all," said Lynn Foster, law professor emeritus at the University of Arkansas at Little Rock William H. Bowen School of Law and president of Arkansans for Stronger Communities.

The lawsuit alleges that the plaintiffs, Cynthia and Terry Easley, of Malvern were served with a failure to vacate criminal eviction notice after falling behind on rent. After their landlord replaced their water tank, which stopped working and left them without running water, the two were unable to afford rent because of new expenses such as renting a portable toilet and buying bottled water.

According to the complaint, both of the Easleys have disabilities and chronic health conditions, and have a combined income of less than $1,200 a month in Social Security disability payments. The two stopped paying rent in December 2020 after no longer being able to afford to do so, and were given the eviction notice in April.

The case argues that the law criminalizes poverty, making it a form of wealth-based discrimination in violation of the 14th Amendment, as well as violating due process rights. Among other allegations, it argues that the law violates the Eighth Amendment for imposing excessive fines that are "grossly disproportionate to the underlying crime and are imposed without consideration of a tenant's ability to pay." The Easleys are being represented in the lawsuit by the UALR Bowen Legal Clinic and nonprofit law organization Equal Justice Under Law.

Phil Telfeyan, executive director of Equal Justice Under Law, said they want Arkansas to repeal what he calls a "draconian law." "In Arkansas, they've made it a crime to be poor. It's effectively a criminalization of poverty," he said.

The most onerous part of the statute, Telfeyan said, is the way it allows fines to pile up for every day the tenant stays in the apartment past the initial 10-day warning period. Telfeyan said it's like "adding insult to injury," driving people further into debt, and the threat of facing jail time can also force people to self-evict, potentially becoming homeless and making their situation much worse.

"This is an unfair law. We hope to argue that it's unconstitutional, but I think everyone agrees it's unfair," said Telfeyan. "You're picking on people who are most vulnerable, who have the least ability to defend themselves." Unlike a civil case, Foster said, if a tenant doesn't show up for their court hearing, warrants can be issued for their arrest. Foster said many people in the state may not be aware of the law and emphasized that if they receive a notice they need to make sure they show up for court.

If a tenant finds themselves able to pay later, the landlord can get the charges dismissed, Foster said. However, once a tenant falls behind on rent, the rest of their lease is null, and the statute doesn't provide for a reinstitution for the lease or a "cure," unlike many eviction statutes, Foster said.

A civil law for evictions is available in all counties, and many counties won't hear criminal eviction cases, Foster said, because judges and prosecutors feel the statute is unfair. Garland County is one of the counties that still hears such cases.

Data from the Office of Research and Justice Statistics shows that the law has been used in Garland County at least 141 times between the start of last year and Nov. 4. In at least 45 cases, the defendant was found guilty.

"Arkansas is the only state that really tips the scales of justice so disproportionately that landlords not only get access to a civil landlord-tenant court system, but they also get access to the criminal court system to fight tenants," said Natasha Baker, staff attorney for Equal Justice Under Law.

"Our lawsuit is not saying people can stay on property forever without paying rent. That's not what we're saying at all. It has to be a legal and constitutional process, and there is a civil landlord-tenant court system that landlords can use to be able to deal with issues of a nonpaying renter," she said.

This isn't the first time the law has been challenged in court, but Baker said even in cases where the challenge to the law was successful, none have set a current statewide precedent.

Previous state challenges to the law have been successful, but only applied at the county level, Baker said. Federal challenges have been dismissed either because the law was changed during the course of the case or the tenant had moved out and the case wasn't a class action, which would have preserved the tenant's claim, she said.

They have filed their case as a class-action lawsuit, though the stage to certify it as such won't be until spring, she said. Telfeyan said they have heard from multiple people throughout the state willing to join the case should it be certified as a class-action lawsuit.

The defendants in the case, both the prosecuting attorney and sheriff for Hot Spring County, have filed a motion to dismiss, with the prosecuting attorney also dropping the original charges. The plaintiffs have filed arguments opposing the motion to dismiss, saying the plaintiffs still have standing and arguing to continue the challenge against the law.

The law has also been challenged in the state Legislature. A bill to repeal the law was filed in the state House of Representatives earlier this year by state Rep. Nicole Clowney of Fayetteville, but it died in committee.

A 2012 Non-Legislative Commission on the Study of Landlord-Tenant Laws created by the Arkansas General Assembly also recommended that the law be repealed.

The Landlords Association of Arkansas as well as the Hot Springs Landlord Association did not return requests for comment.

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