Attorneys involved in a lawsuit that could be decided in Pulaski County Circuit Court this month are seeking to have struck down as unconstitutional one of the cornerstones of Arkansas's legendary anti-tenant renter laws: a statute that criminalizes the eviction process, making the failure to vacate a property within 10 days of an eviction notice a misdemeanor that can lead to fines and jail time. A similar case has been filed with the courts in Washington County.
Under Arkansas law, a renter who is one day late with a single payment can be evicted. In the United States, the law is unique to Arkansas. Other states generally consider tenant law a matter for the civil courts.
In Arkansas, if a tenant seeks to contest the charges and plead not guilty, the current law — Arkansas Code annotated 18-16-101 — requires the tenant to deposit the entire amount of rent he or she allegedly owes with the registry of the court, which will hold the funds until the case is decided. If the tenant is found guilty of the misdemeanor, he or she will forfeit the money placed with the court to the landlord, and will be liable for $25 per day for every day he or she stayed in the residence after being served with the eviction notice. If the tenant does not place the alleged back rent with the registry of the court and is eventually found guilty of the nonpayment of rent and failure to vacate, then the law says the renter is guilty of a more serious Class B misdemeanor, punishable by a $1,000 fine and 90 days in jail.
Dustin Duke is the managing attorney for the Center for Arkansas Legal Services, a nonprofit that helps clients who normally wouldn't be able to afford an attorney to assist them with their legal problems. Duke and other attorneys with the center have been filing briefs on behalf of Artoria Smith of Little Rock. In July 2014, Smith was served with a notice to vacate a house on Scotty Court in Little Rock; her landlord alleged she owned $22,353 in back rent. Smith elected to remain in the house, and her landlord filed an affidavit seeking her arrest for nonpayment of rent a few weeks later. On July 22, Little Rock District Court issued an arrest warrant for Smith, along with a citation compelling her to appear to address charges that she'd violated Arkansas's failure-to-vacate law.
In the brief filed on Smith's behalf, attorneys argue that the criminalization of eviction "violates the state and federal constitution ban on debtors' prisons, impermissibly chills a defendant's fundamental right to trial, constitutes cruel and unusual punishment ... and denies equal protection and due process under the state and federal constitutions."
Duke said that the criminal penalties prescribed in the statute (which also doesn't require rental agreements to include a "warrant of habitability" that forces landlords to maintain rented properties or repair things that break or fail after a renter has moved in), are almost unique in the law.
"There's really no analogy to this in any other area of law," Duke said. "A private contract between two individuals is usually litigated in civil court. They hire their own counsel and it's litigated. It's very unusual — pretty much unprecedented — where the state steps in and says, 'It's a private contract, but we're going to take up the cause of one side or the other, and it's going to be a crime if you don't abide by the private contract.' " For renters, the issues around the failure-to-vacate statute can be compounded if a landlord fills out an affidavit alleging a renter hasn't paid rent. That means there is no hearing to determine whether the amount the landlord claims to be owed is accurate. Duke said the number the landlord writes down on the notice to vacate is automatically assumed to be fact.
"With most criminal cases," Duke said, "there's going to be some kind of preliminary hearing to make a determination on what's an appropriate amount. With this case, there's no evidence presented, and there's no determination by a judge on whether the amount the landlord is alleging [to be owed] is an accurate amount or based on anything at all other than what the landlord made up. It's an arbitrary number. And if the person doesn't pay that arbitrary number, and they lose the lawsuit later on — if they're found guilty — then they can go to jail."
What the current law allows, Duke said, is for landlords to "use the state as their enforcement mechanism," employing the threat of fines and jail to frighten tenants into moving out, or getting the local sheriff's office involved if they contest. "The state gets to foot the bill," he said. "The landlord gets to take all the benefits of collecting rent, and if they have a problem with the tenant, the state and the taxpayers get to pay for the eviction. ... A taxpayer might look at it and say, 'If I'm not a landlord, if I'm not involved in any way, shape or form, why are my tax dollars going to help some slumlord kick people out of his premises?' "
Duke said the Center for Arkansas Legal Services and the Northwest Arkansas-based Legal Aid of Arkansas — the group spearheading the Washington County case — put together a committee about a year ago to discuss how to get the criminalization of eviction declared unconstitutional. He said that in his 11 years with Legal Services, he has only litigated a few dozen cases in which renters sought to fight charges that they owed back rent. Most renters, he said, don't know their rights and just leave a property when they learn that they can be fined or jailed if they don't vacate. Duke said he has even seen cases in which renters paid their rent on time, but, after getting in a disagreement with the landlord, had their rent payments refused.
"Then [the landlord will] turn around to the prosecutor," Duke said. "They'll run down there and swear out an affidavit saying the tenant didn't pay the rent. It has nothing to do with the rent. They've butted heads over something, and they want the tenant out. ... They shouldn't be doing that, but they do it."
Duke believes the state's pro-landlord rental laws are on the books because the real estate organizations in the state are particularly powerful, and because there's no strong voice in the state's General Assembly that will stand up for tenants' rights.
"Most of the folks in our state are low income, and especially most of the tenants are low income," he said. "It's not a state like New York where you have a lot of rich folks who elect to rent, so they have a voice."
Duke expects Pulaski County Circuit Judge Herbert Wright to rule on the constitutionality of the criminal eviction law soon. If Wright declares the criminal eviction statute unconstitutional, Smith's case will be dismissed (Duke doesn't, however, expect other districts around the state to adhere to a possible finding that the law is unconstitutional unless the Arkansas Supreme Court eventually agrees).
If Wright finds that the current law is constitutional, the prosecution will go forward, with Artoria Smith's case scheduled to be heard on Jan. 29. Smith hasn't put the $22,353 her landlord claims to be owed in the court account, meaning that if she is convicted of failure to vacate, she could be fined or sentenced to jail time.