LAW DAY: Eviction Proceedings Drive Right to Counsel Push

The empty bench is shown in the Nebraska Supreme Court Chambers in the state Capitol. (Nebraska Judicial Branch)
Molly Ashford
The Daily Record

When Alison Reents qualified for federal assistance in November after her family was forced into an extended quarantine, she felt relieved.

That relief, unfortunately, didn’t last long.

Instead, the single mother of two from Hastings found herself in a three-month legal battle to stay in her home. Her landlord, upon learning she was receiving assistance, pushed to get her out of her residence — despite the federal eviction moratorium and ongoing pandemic.

“I was unsure of how he could just end my lease,” Reents said. “There were never any problems. I had never been late on rent. He was basically concerned that I wouldn’t be able to pay my rent based on the fact that I had received assistance.”

Because the landlord had no legal grounds to evict Reents, she was initially given a lease non-renewal notice. He still tried to evict her, citing that she never put utilities in her name. A tense legal battle ensued.

“He was so convincing I even called the utility company,” Reents said.

The utility company confirmed that the utilities were, in fact, in her name, she said.

There are thousands of cases like hers across Nebraska. Even with the pandemic-inspired federal eviction moratoriums, a report from Creighton University’s Social Science Data Lab found that 3,482 evictions took place across the state in 2020—a substantial decrease from the average of years past, yet a staggering number of displaced people and families.

The report found at least 60 cases in which eviction proceedings were filed for nonpayment of rent despite the moratorium, 36 of which were filed in Douglas County. Almost half of those cases ended in a legally dubious eviction.

Legal advocacy organizations in the state suggest that many of these evictions — whether they were ultimately lawful or not — are the result of systemic disadvantages that tenants face in eviction proceedings.

“Without legal training and court experience it’s almost impossible to navigate,” Talia Smith, a founding member of Nebraska’s Right to Counsel Coalition, told The Daily Record in a March interview. “Landlords on the other hand, at least the majority, are represented by lawyers. It’s just not a system that works in favor of tenants, ever.”

Indeed, even with renewed efforts from legal advocacy organizations to connect tenants with counsel, Creighton’s report found that only 4.4% of defendants in eviction filings had legal representation in 2020. That’s about 150 defendants with an attorney out of nearly 3,500.

Even this small percentage is a significant jump from previous years. Between 2016 and 2019, less than 2% of tenants had legal representation on average.

• • •

The Sixth Amendment to the U.S. Constitution guarantees defendants in criminal cases the right to be represented by an attorney in legal proceedings. It doesn’t extend the same right to civil matters, including evictions or other potentially life-altering legal subjects, including domestic violence, health care, child custody and immigration.

Unless there is a criminal component to a civil case, defendants don’t have the right to counsel. It is up to them to pay for representation or seek assistance from a free or lower cost source.

Although there are national initiatives to establish a right to counsel in all civil cases, many activists and advocates have honed in on housing, particularly after the coronavirus pandemic.

John Pollock, the coordinator at the National Coalition for a Right to Civil Counsel, says that this is because every aspect of a person’s humanity is at stake in an eviction case.

“You can lose your shelter, the place that your family gathers,” Pollock said. “You potentially lose being part of a community. You have to move, but if you don’t have a stable home, your children could be removed from your care. You can lose your job if you’re not able to stay in the community, or become homeless — and, if you are homeless, you have very serious physical safety and health issues that can arise, and mental health issues. You can be incarcerated. The list just goes on and on.”

Collective Impact Lincoln, a social change partnership between Civic Nebraska and Nebraska Appleseed, have focused much of their work around housing rights like the right to counsel.

Vic Klafter, a community organizer for Collective Impact, says that the benefits of offering legal representation to tenants are innumerable, going far beyond the “tangible benefit” of having legal support and guidance throughout a case.

“There is not equal access to the law at this point, because people do not know the convoluted law that governs evictions and housing,” Klafter said. “The right to counsel is part of this larger shift that’s needed to instill confidence amongst tenants that they have right to housing, and there are laws to protect that right.”

Of course, Klafter concedes, there are many steps to be taken before this shift can happen. The first step was taken by State Sen. John Cavanaugh when he introduced Legislative Bill 419 in the Nebraska Legislature. The bill would guarantee the right to counsel for tenants.

Cavanaugh was inspired to propose the bill because of his seven-year tenure as a public defender. He says that his time in the office helped him to understand the importance of legal representation.

“Coming from my perspective as a public defender, I understand that these differences in outcomes mean that people are being evicted when they shouldn’t be,” Cavanaugh said. “I think that speaks to broader issues of fairness and justice that we need to remedy.”

He was also drawn to the eviction report from Creighton University, which cites an article about New York City’s Right to Counsel program.

An analysis from the New York City Bar Association found that providing free legal counsel would save the city about $320 million a year.

That savings comes largely by diverting people from utilizing homeless shelters and other state or city-funded support services. Cavanaugh is confident that the program would have a similar impact in Omaha.

LB 419 is pending before the Judiciary Committee. It does not have the votes needed to get to a floor debate. Regardless of what happens in this session, though, members of the right to counsel coalition are prepped to keep fighting.

“Our role is trying to leverage that the conversation has been started by LB 419, and we are now in the beginning stages of identifying how we as a state want to prioritize tenant protections and rights,” Klafter said.

Cavanaugh isn’t done with the right to counsel either—even if the bill doesn’t pass.

“I’m committed to bringing this bill or some form of it until it’s passed, or until I’m done here,” he said.

• • •

Reents considers herself lucky.

Once she realized that she was in over her head, she contacted Legal Aid of Nebraska. They put her into contact with the Volunteer Lawyers Project, where she was able to meet an attorney willing to take her case.

After a three-month battle, Reents was able to file a federal lawsuit against her landlord because of the tactics used to try to remove her from her home. She never had to step foot in a courtroom for the case.

“If I wouldn’t have had an attorney, I don’t think it would have been caught that what he was doing was illegal,” she said.

Reents is now comfortably living in a new home with her two boys and is an active member of Nebraska’s coalition.

“Eviction is a humiliating process anyways,” Reents said. “And, when you go it alone, it’s overwhelming. You get in there and realize that it’s stacked against you from the beginning.”


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