On Tuesday Pulaski County Circuit Judge Herbert Wright ruled that Arkansas's criminal eviction law violates both the Arkansas and U.S. Constitutions. The order only applies to Pulaski County. The statute concerns the way in which landlords and tenants settle disputes over non-payment of rent and eviction proceedings.
KUAR's Chris Hickey spoke with attorney Jason Auer, part of a four person legal team which challenged the law.
HICKEY: You are part of the legal team who represented Artoria Smith, the tenant who, according to her landlord owed more than 22,000 dollars in back rent. Could you talk a little about her case and explain why you see it as an example of what's wrong with Arkansas's criminal eviction statute?
AUER: Well, Ms. Smith came to [Arkansas] Legal Services several months back with a complaint that her landlord was bringing this “failure to vacate” criminal eviction against her in order to get her to leave a home she lived in for over ten years. She was being charged under the criminal eviction statute and the landlord was alleging she owed over 22,000 dollars. Part of the big problem with the statute and why Judge Wright I think ultimately found it unconstitutional is that there was no real way for her to contest that amount prior to the hearing. And the way the statute works is that a tenant like Ms. Smith is actually required to pay the amount that the landlord alleges that she owed into the registry of the court without any type of adjudication prior to her having to pay that amount. If she doesn't pay that amount, then she can be—if she's ultimately found guilty—found guilty of a higher-level offense. So, in this way it really chilled Ms. Smith's right to trial in that she had to either choose between paying that exorbitant amount, which of course she didn't have, or simply pleading guilty to the offense.
HICKEY: Many have noted how in other states evictions are civil matters and not criminal ones...Could you talk further about how Arkansas law differs from eviction laws in other states?
AUER: Right, well actually in every other state eviction is treated as a purely civil law matter. In Arkansas on the other hand, Arkansas does have a civil law eviction statute. It's called an unlawful detainer, that landlord can file in civil court and get what's called a writ of possession which is a document that actually allows law enforcement to come and forcibly remove a tenant from their dwelling. But Arkansas differs that it also has this criminal proceeding called 'failure to vacate' and that makes it a crime for a tenant to fail to pay rent and continue to reside in the premises. No other state makes that a crime. So in Arkansas, not only can a tenant be forced to be removed under civil law, they can also be charged with a criminal misdemeanor which has all kinds of potential effects greater than a civil judgment such as creating a criminal record which can make it hard to get housing later. It can also make it harder to get certain government benefits. So it's really a bad deal for a tenant, especially when their circumstance is not of their own making.
HICKEY: Could you explain how the statute works if a tenant chooses to challenge, through the court system, his or her landlord's ultimatum to vacate. How did that process work under the “failure to vacate” law that was struck down by Judge Wright?
AUER: Well, under the failure to vacate statute, the first step is that the landlord makes an affidavit with the local prosecuting attorney, stating that the tenant has failed to pay rent and also states an amount that the tenant owes. Then the tenant is required to pay that amount into the registry of district court or the tenant faces a higher-level offense. So if the tenant agrees with the amount and pays it, then they can only be convicted of what's called an unclassified violation which I believe carries a maximum fine of 100 dollars. If they don't pay their rent into the registry of the court or they can't pay their rent into the registry of the court—and keep in mind, no one has passed any judgment on the tenant at this point; the tenant has not been convicted of anything; they've simply been charged based solely on the word of the landlord—if the tenant does not pay that amount, which in Ms. Smith's case, the landlord was alleging over 22,000 dollars, then if the tenant is later convicted, they can be convicted of a class B misdemeanor which carries a much higher fine and also very importantly carries the possibility of 90 days in jail.
HICKEY: Now, the state may very likely appeal this case and it may end up being decided by the state supreme court. If the unconstitutionality of the law is upheld, what will that mean for the future of landlord/tenant laws in the state?
AUER: Well, it would mean that landlord/tenant law in Arkansas would be similar to landlord/tenant law in other states, at least as [it applies] to eviction. It would get rid of this criminal eviction, so that landlords cannot use that as a course of means to get tenants out of their homes. They'd have to use a civil process which would be similar to what's used in many other states and currently on the books in Arkansas as well.