Solution to Help Tenants Avoid Eviction Lags in Maryland

Monday, July 3, 2017
Doug Donovan
Baltimore Sun

For nearly two decades, Judge Marcia Sikowitz has presided over landlord-tenant disputes in one of New York City's busiest housing courts.

In a borough where rapid gentrification has sent rents soaring, Sikowitz says, she has heard it all — and said it all. When a renter who was representing himself in an eviction proceeding would ask her advice, the judge had a rote retort: "I'm not your lawyer and I can't tell you what to do."

Sikowitz says she never thought she'd see the day when tenants could get representation as easily as they can now. Under a new program, renters simply walk a few feet to an office in her courtroom to apply for same-day help from a nonprofit law firm.

"It's a completely different court from when I started," Sikowitz says. "Very few tenants had attorneys."

It's a legal concept known as the civil right to counsel. And officials from New York to Washington, from Boston to San Francisco are embracing it to help restore balance to housing courts they say favor landlords over tenants, leading to avoidable evictions that are straining their cities.

As the affordable rental housing shortage worsens, and President Donald Trump has proposed eliminating federal funds for legal services to the poor, their efforts have accelerated.

But the national momentum has largely bypassed Baltimore, a city that spends more to carry out evictions than it does to prevent them.

The city spent $2.7 million in fiscal year 2016 for sheriff's deputies to oversee nearly 70,000 eviction orders each year, while allocating $1.3 million for services to prevent eviction or homelessness. The city reported preventing 68 evictions in fiscal year 2016 with the $130,000 it gave the Maryland Legal Aid Bureau. It also provided $35,000 to the Public Justice Center, which reported preventing 40 evictions.

Baltimore Mayor Catherine E. Pugh has said she is exploring expanding eviction prevention programs and access to attorneys for tenants, but the budget for that in the coming year is about the same as 2016.

City Council President Bernard C. "Jack" Young said his "eyes lit up" when he heard about New York's efforts while attending a recent National League of Cities conference.

"We're looking at whether we can do something similar," said Young, adding that he has not discussed the issue with the mayor. "We have to figure out where the money is going to come from. It's something we can talk to the state about."

Most of the state's legal community has endorsed publicly funding attorneys for the poor for years.

Gov. Martin O'Malley and the General Assembly created a task force in 2013 to study how the concept might work in Maryland. The Task Force To Study Implementing a Civil Right to Counsel in Maryland, which included judges, legislators, a landlord representative and a tenant advocate, found a "significant justice gap" in civil courts for some 340,000 people who cannot afford lawyers when they go to court in critical human-needs cases — child custody, domestic violence, housing. Nearly 84 percent were in landlord-tenant actions.

"Marylanders need meaningful access to civil legal representation," the panel reported in 2014.

Projected costs helped kill the effort. The Maryland Access to Justice Commission estimated that it would cost $92 million to provide publicly funded lawyers just in landlord-tenant cases.

"We have been unable to generate the political support which is essential to get the financial support to move forward," said Del. Sandy Rosenberg, a Baltimore Democrat who served on the task force.

Rosenberg has introduced two bills the task force recommended. Neither went anywhere in the General Assembly.

Legislation he introduced in 2016 would have created a $250,000 pilot program to provide lawyers in domestic violence protection cases in Harford and Prince George's counties. Ward B. Coe, chairman of the Maryland Access to Justice Commission, said its failure was instructive.

"What we've learned in the General Assembly is that we need to do some really strong grassroots work to have people understand that in the civil area, basic human needs can go unmet, and you can lose them if you can't afford a lawyer," Coe said.

He said lawmakers are right to worry about the costs of providing counsel. But they also need to be aware of the costs associated with not having lawyers.

"Yes, it costs money to provide counsel," he said. "But the societal costs of homelessness and battered spouses will dwarf them."

The state funds legal services to the poor through the Maryland Legal Services Corp. The nonprofit closed nearly 152,000 cases last year with the $16.4 million it received from three main state sources: interest generated from trust accounts held by Maryland lawyers, a surcharge on circuit and district court filing fees and $1.5 million from the state's abandoned property fund. The largest portion of cases, 37 percent, were in family court. Nearly a quarter were in housing. The 36 nonprofits it funded saved 1,756 people from evictions or foreclosures, the agency reported.

"We haven't abandoned the right to counsel effort," Coe said. "It's just a matter of we have to get a grass-roots understanding of these issues."

Rosenberg said supporters need to study how coalitions in New York and across the nation have generated more legislative action.

"It's worth our looking at how that came about in the other states and cities," Rosenberg said.

Baltimore's City Council has never proposed supporting a civil right to counsel.

As a state senator in 2016, Pugh co-sponsored legislation with Rosenberg to support recommendations by the Public Justice Center to reform the city's rent court.

That bill would have established a "tenant legal assistance special fund," financed by a $30 fee charged to landlords when they filed for an eviction.

But the legislation was pulled. Instead, the Maryland Judiciary established another study group at the request of Pugh and Rosenberg — which proposed reforms this year that also failed to advance.

The group of landlords, tenant advocates, lawmakers and a judge endorsed a publicly financed civil right to counsel.

Kathy Howard is a lobbyist for the Maryland Multi-Housing Association, a group that represents landlords. She served on the study group.

"There is no opposition to there being a civil right to counsel," she said. "But it has to be at public expense."

The American Bar Association, the Maryland State Bar Association and the state task forces that have examined the issue agreed that attorneys should be funded with public money, as public defenders are.

The proposed surcharge was "essentially a tax on a particular industry's access to the courts and would have set a very bad precedent," Howard wrote in an email.

Reporting by The Baltimore Sun has shown that landlords enjoy significant advantages over tenants in rent court. A Sun analysis of more than 5,500 tenant complaints of substandard housing between 2010 and last year showed that District Court judges routinely ruled in favor of landlords in disputes over living conditions, even when city inspectors confirmed threats to health, safety and well-being.

Judges routinely gave landlords more than three times the 30 days state law deems "reasonable" to make repairs. They could decide eviction proceedings in minutes.

In Baltimore, tens of thousands of low-income tenants filter through housing court each year to face off alone against landlords. The court issues some 70,000 eviction orders each year, leading to nearly 7,000 actual evictions. Evicted tenants typically continue a cycle of frequent moves that leaves them migrants in their own city, and challenges their ability to hold jobs and children's opportunity to get an education. And they can end up homeless.

The Maryland Judiciary has taken steps to address disparities in legal representation, a spokesman said. In addition to self-help centers, the judiciary is allowing the University of Baltimore to start a navigator program in Baltimore's District Court modeled after one in Brooklyn's housing court. It will provide volunteers to help tenants through the rent court process. The judiciary also awarded $88,500 to a nonprofit to start a volunteer lawyer program this summer.

Advocates say legal representation is the best way to help low-income tenants challenge landlords — and to help judges avoid favoring property owners.

"I don't think I'll be totally satisfied until we have a civil right to counsel," said Susan Erlichman, executive director of the Maryland Legal Services Corp. "These are particularly tough times. We have an administration in Washington that is talking about eliminating funding for the Legal Services Corp. We have quite a long way to go before we get to where we need to be."

The nation's leading advocacy group on the issue is based in Baltimore. The National Coalition for a Civil Right to Counsel started in 2003 and is a collection of 300 organizations in 38 states advocating for lawmakers to support the policy.

John Pollock, a Public Justice Center attorney, serves as the coalition's coordinator. He maintains a website that tracks progress in jurisdictions nationwide. According to his count, cities and states introduced nearly 60 bills last year to support the concept.

"For judges to have all the information and to make the best decision, they need to hear from both sides effectively," Pollock said. "New York City has inspired other cities."

In Brooklyn, nonprofits take turns providing lawyers to tenants. At first, tenants had to fall within certain income guidelines, but this year New York Mayor Bill de Blasio is implementing "universal" assistance to any tenant facing eviction.

Jordan Dressler is coordinator for New York's Office of Civil Justice, which was created to supervise the program's expansion and to track its performance. He said the de Blasio administration is aware that other cities are watching.

When de Blasio took office in 2014 he committed to reducing income inequality. New York, like many other cities, has been experiencing a rapid reduction in affordable housing.

"That crunch was hitting low- and moderate-income New Yorkers," Dressler says. "And the battleground for that was, more and more, in housing court."

De Blasio started the program in fiscal year 2015 with $16.6 million, a 160 percent increase from the previous year's budget. Legal services groups targeted tenants from specific ZIP codes.

The mayor was riding a wave of support Dressler says was built in 2010 and 2011 by former New York State Chief Judge Jonathan Lippman, who held dramatic public hearings on the civil legal needs of low-income New Yorkers and proposals to allocate tens of millions of dollars to nonprofit groups.

The city's funding jumped to $62 million in fiscal year 2017, with an additional $8.7 million from the City Council.

The mayor announced this year an increase to $77 million to establish "universal access," providing attorneys to any tenant facing eviction.

So far, Dressler says, "the numbers do tell a tale."

The proportion of tenants with legal representation has grown from 1 percent in 2014 to 27 percent last year, Dressler says. Evictions fell by about 24 percent from 2013 to 2015 to 22,000. Officials in Baltimore and Maryland do not track similar numbers, but say most tenants are not represented.

"Budgets are statements of priorities, and this is a priority," Dressler says. "Without stable affordable housing, it is just incredibly challenging for any family to do all the things they need to do to get by and thrive."

Tenant support in Brooklyn's housing court begins the moment a renter enters the courthouse. Kayla Schwarz is one of several navigators who greet tenants as they wait in line to check in with a clerk. She offers to help navigate the raucous crowd of landlords, tenants and attorneys negotiating outside courtrooms on four floors.

On a recent morning Keith Darby gladly accepts her offer. The 39-year-old restaurant worker says he has lost his job and fallen $2,700 behind in his rent. If he's evicted from his $838-a-month apartment, he fears his next place could cost $2,000 a month.

Schwarz is coordinator of the Navigator program run by Housing Court Answers, a nonprofit that has been helping tenants without attorneys for nearly 30 years. She leads Darby to a table, where they sit. She runs through a series of questions to determine whether he has any legal defense against his landlord, such as illegal eviction threats or outstanding repairs. She then explains the process and leads him to a clerk, who schedules a hearing for the next week.

Schwarz ends the 10-minute interaction by asking Darby for his permission to text him a reminder of his court date. He cheerfully accepts. Miss it, she warns, and he will lose his case.

Meanwhile, upstairs on the third floor, the lawyers in the 140-year-old Legal Aid Society face a long line of tenants, as they have for decades. These days, they are able to accommodate more of them than ever.

Rachel Ganani, a supervising attorney with the nonprofit, controls the chaos with rapid fire confidence, remembering clients' names, their case status and staff assignments.

When Ganani started here in 2010, there were two attorneys. Today there are 12.

"We are set to expand even more in July," she says.

Ganani's colleague, Nakeeb Siddique, says the mayor's policy is helping to challenge the entrenched "cozy relationships" that can exist between landlord attorneys and some judges.

Some landlords complain that the presence of more tenant lawyers allows bad renters to avoid paying for far longer.

At one recent hearing, a tenant fails to show. But the Legal Aid Society attorney has just taken on the client, so Sikowitz authorizes a fifth delay in the case.

Catherine H. Cornelius Nightingale, an attorney for the landlords in the case, complains that the tenant has had four other chances to pay the nearly $7,000 he owes in rent.

"This is unfair to my client," she says. But she agrees to another hearing.

Nightingale says expanding free legal representation to tenants is unfair to small property owners who rely on rent to get by and who might need help paying for attorneys themselves.

"My clients are at risk of losing their homes," she says. "Who is looking out for their interests? They're one step above the tenants. I'm not pro bono. They have to pay me."

Dressler says such arguments ignore the real disparity.

"This really was a David-and-Goliath situation, and a very uneven playing field, where the landlords were coming in with lawyers each and every time," he says.

Boston quickly took notice of New York's effort.

Boston Mayor Marty Walsh established the Office of Housing Stability last year to address an affordable housing shortage there that is leading to more evictions.

The office is charged with compiling statistics on evictions, which have been difficult to obtain for years. Landlords are required to file evictions orders with the Housing Stability office so that officials can intercede to find a solution before a family is displaced.

Sammy Nabulsi, a Boston city attorney, drafted a right-to-counsel bill now before state lawmakers, who must approve city legislative proposals.

He said the threat of federal budget cuts to the national Legal Services Corp. will require local governments to step up and address the problem.

"It's time to take up right to counsel," Nabulsi said.

The legislation proposed by Boston Mayor Walsh calls for codifying the civil right to counsel — something New York City is still ironing out — and recommends a two-year process to determine how to fund the program.

"We expect resistance to cost," Nabulsi said.

But he added that reducing evictions would likely reduce the cost of services to the homeless in Massachusetts which, like New York, is a right-to-shelter state. That means anyone who is homeless has a right to stay in a shelter or be put in a hotel.

"That runs the state an astronomical amount of money: about $24,000 per family per shelter stay," he said. "With right to counsel, you can save money in the long run.

"Conservative estimates say we could realize $12 million to $50 million in savings."

A consultant concluded that New York's efforts to provide lawyers to all low-income tenants could cost $199 million. But the same consultant concluded the city was likely to save $250 million by helping to keep about 5,300 families from being evicted.

A pilot right-to-counsel program in San Francisco in 2013 recorded such savings. The project helped more than 600 tenants avoid homelessness, Stanford University researchers reported in 2014. They estimated that the legal work helped the city save $1.1 million in shelter costs.

Mairi McKeever is director of the San Francisco Bar Association's pro bono legal services program.

"New York is doing what we would all want: to make it an entitlement," she said.

The city closest to following in New York's footsteps is closest to Baltimore. The District of Columbia Council is set to approve a budget that includes $4.5 million to provide lawyers to low-income tenants in eviction cases.

Landlords file more than 33,000 eviction cases in Washington each year. Nearly all landlords have legal representation in court. Only about 5 to 10 percent of tenants do.

"This power imbalance puts tenants at a stark disadvantage that often leads to unjust outcomes, as attorneys can help assert defenses, reach reasonable settlement agreements, and improve housing conditions," Councilman Kenyan R. McDuffie wrote in legislation.

McDuffie, an attorney, had his first trial experience in Baltimore housing court representing a family facing eviction several years ago.

"We worked with the landlord to keep her and her children there," he said. "That case was an example of the thousands of people who could stay in their homes" if they had "an advocate by their side when they walked into court.

"The initiative in New York really had some outcomes that suggest it's worth making a larger investment," he added. "We should be protecting tenants from unjust evictions."

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