We take back our thanks to the governor for now! After being held in the governor’s office for a week, SB25 became Act 159 on Valentine’s Day. There is conflicting information as to whether the governor signed and we will update this post when we know. We would also include a link to the Act but it is not yet posted on the official General Assembly website, one week later after enactment.
We agree that Arkansas landlords need a quick, inexpensive eviction procedure. But it also needs to be fair. Act 150 is neither fair nor responsive to landlords’ needs. Let’s consider the act.
First, in a civil eviction proceeding, the judge issues an order evicting the tenant, and a writ of possession to law enforcement that authorizes it to physically remove a tenant and her belongings. Act 159 does not authorize a judge to issue an order of eviction, and the judge of a criminal proceeding doesn’t have any authority to evict anyone anyway. Act 150 does not authorize a judge to issue a writ of possession. Act 159 does not authorize a judge to permit the landlord to change the locks. Any eviction of a tenant ordered by a judge under this act will be an illegal eviction.
Second, prosecutors and judges may still refuse to hear these cases. According to research carried out in 2012, 30% of Arkansas district courts did not hear failure to vacate cases. We will be surprised if those courts change what they are doing. If we were the judge and political pressure were brought to bear on us to enforce the law (because district court judges are elected), we would simply follow the letter of the statute–exactly what it says–and fine the tenant $1 per day. That adds up to a rent of $30 or $31 per month–not a bad deal! The statute calls for a fine of between $1 and $25 per day for every day the tenant remains on the premises. That is the only penalty allowed by the statute. Again, under this statute the judge has no authority to order the locks changed, the tenant to move out or a writ of possession to be served.
Third, in our opinion the law, declared unconstitutional in 2015 by three courts, is still unconstitutional even with the changes. Supporters of this bill argued (and the bill declares) that two courts declared it to be constitutional. Let’s look a little more closely at these two cases. The first one, Munson v. Gilliam, a 1976 federal Eighth Circuit Court of Appeals decision, ruled not on the constitutionality of the failure to vacate statute, but on whether an injunction could be justified. The question the court was answering was whether Little Rock could continue to prosecute failure to vacate cases while the statute was being litigated, or whether an injunction ordering the city to hold off would be enforced. The test in such a case was whether the tenants were likely to succeed, and whether failure to affirm the injunction would cause them irreparable harm. The court stated in what is called “dictum” its opinion that the statute was valid. But, and this is important, the prosecutor testified that landlords were “questioned extensively, under oath,” before a criminal information was prepared. That doesn’t happen in most courts today. The prosecutor or city attorney simply rubber-stamps what the landlord says. The court also said that tenants were allowed to raise civil defenses. That usually doesn’t happen either and even if it does, this law doesn’t allow it! The Munson court read words into the statute that aren’t there to reach its conclusion.
The later case, Duhon v. State, an Arkansas Supreme Court case, came right out and said that the Munson court did not declare the statute to be constitutional. Duhon repeats the same reason from Munson that a tenant can raise a civil defense and a court will hear it. Again, the statute doesn’t say that. Arkansas judges have been observed asking tenants only these two questions: are you still living there? And, have you paid the rent? The statute doesn’t allow the tenant to raise any other issues. A kind judge might allow this, but the statute does not. The law isn’t supposed to depend on kind judges to work.
The Arkansas Supreme Court has said that this law is in the public’s interest. Perhaps that was true thirty or forty or one hundred years ago, but it is not now. It is not in the public’s interest for landlords to be subsidized by taxpayers while tenants may end up victims of the criminal justice system for breaching a contract.
Despite the fact that one of this bill’s sponsors stated that this bill was not the best solution, and that a civil procedure would be better, none of the landlords’ groups has taken the time to draft one. However, a quick, inexpensive, fair civil procedure is in the works! When we have more information we’ll post it.