by Max Brantley
Every time a pro-tenant bill goes down in flames, the realtors, bankers, and insurance lobbyists offer the same refrain: TAKE THIS TO COURT; it’s not a legislative matter. “There are remedies for that,” said Allen Kerr, Arkansas’ Insurance Commissioner, back in March after yet another proposal to help renters failed to gain momentum at the state Capitol. “It’s the court system…”
Because most renters do not have a lawyer, and most cases never make it beyond arraignment, the law has only been appealed ten times since 1968, never successfully. The constitutionality of the statute had also not been ruled on since the 2001 amendment that required defendants to pay their rent before proceeding to trial.Smith and the legal aid organizations of Arkansas seem to have taken that advice.
Without much fanfare, they have quickly launched an all-out assault on the failure-to-vacate law in courts around the state. First, Smith appealed her guilty verdict – and won. A usually-conservative circuit judge in Pulaski County, Herbert Wright, ruled that the manner in which she had been treated was unconstitutional on the grounds that it chilled her fundamental right to due process and a trial (and constituted debtors’ imprisonment, to boot). “The fact that Arkansas’s sui generis law is – by definition – an ‘unusual’ punishment only further convinces this Court that the statute is facially unconstitutional,” Judge Wright concluded.
As a result of Arkansas v. Smith, renters in Little Rock – Arkansas’ largest and most populous jurisdiction – no longer face criminal prosecution if they fall behind in paying rent [This is debatable. A circuit court ruling isn't the same as Supreme Court precedent, though it has been influential.] Ever since, legal aid attorneys have been mounting a district-by-district operation to take down the law.
“We will use [Smith’s] case as persuasive authority in similar cases,” says Jason Auer of Legal Aid of Arkansas, which is spearheading the effort.
Craighead County, in Northeast Arkansas, was the next to fall. The D.A. there issued a memo saying that he would no longer approve arrest warrants regarding nonpayment of rent. In at least 12 other counties in the western part of the state, more cases are pending. Johnson says that Legal Aid of Arkansas is “trying to fly under the radar” by filing these briefs almost surreptitiously, before the realtors’ groups take notice. “If the realtors knew where the next one was coming, they would immediately go to that county and exert all their political and financial sway over the judges and D.A.’s, who are all elected… The goal is to go county-by-county before their lobbyists find out.”