Arkansas' 114-year-old criminal eviction law, which allows courts to punish tenants with jail time for not paying rent, is unconstitutional because the statute illegally infringes on the rights to trial and equal protection, a Pulaski County circuit judge has ruled.
Judge Herb Wright also found the law violates bans on debtors' prisons and cruel and unusual punishment.
The law, passed in 1901, makes it a misdemeanor for tenants who owe rent to stay on the leased property after being given written notice to vacate.
The law is the only one of its kind in the United States, and tenants convicted of the failure to vacate charge can be fined $1,000 and sentenced to as much as three months in jail.
The law doesn't even give the courts the power to force nonpaying tenants off the property, Wright wrote in his 14-page decision issued Tuesday. And a provision that requires accused tenants to pay the disputed rent into a court-controlled account means defendants have to pay before they can get a trial, according to the ruling.
"The possibility that a mistake might have been made, that a landlord might be acting dishonestly, or any other argument that a defendant has a justifiable defense for remaining on the property after notice cannot be asserted, as the defendant is given no opportunity to be heard unless they have already been deprived of their funds by placing them with the court," Wright wrote.
A legislative commission that examined the state's landlord-tenant laws recommended in 2012 a repeal of the law, a position the judge endorsed in his findings, which were first reported by the Arkansas Times.
Wright wrote that if he could have invalidated only that payment provision as unconstitutional, he would have. But a 1991 state Supreme Court ruling makes the entire law illegal under Arkansas' ban on debtors' prisons, the ruling states.
The challenge to the law was a joint effort of Legal Aid of Arkansas and the Center for Arkansas Legal Services, with assistance from the American Civil Liberties Union.
Legal Aid and the Legal Services center provide free legal services to low-income residents with civil legal problems, including foreclosure, consumer issues, housing, help for victims of domestic abuse and representation in public benefits.
In announcing the ruling Wednesday, the aid groups described it as a "landmark" step toward "equalizing the playing field" between landlords and tenants.
They said the decision would stop further prosecutions in Pulaski County. The impact of the decision does not extend beyond the county, although other circuit judges can consult the 14-page decision for guidance.
The aid groups noted that Arkansas is the only state where tenants can become convicted criminals for not paying their rent and where landlords are not required to make sure their properties are safe and livable.
"Arkansas has been on the wrong side of history when it comes to treating citizens of the state equally," Stacy Fletcher, a Legal Services lawyer who worked on the case, said in the announcement. "The failure to vacate statute was solely designed to intimidate renters into giving up their rights to a trial."
She said that a study published in 2013 in the University of Arkansas at Little Rock Law Review found that 2,000 cases are filed statewide a year, with 900 of those in Pulaski County district courts.
The law previously had passed constitutional challenges before the Arkansas Supreme Court, but not since 1989.
In his decision, Wright found fault with amendments added by the state Legislature in 2001 that effectively strip a tenant of the constitutional due-process right to a hearing on the charges.
The 2001 amendments changed the statute, Arkansas Code 18-16-101, to require tenants to pay the disputed rent.
Before the alterations, defendants had to be convicted before being forced to pay, the judge wrote.
But those changes removed the requirement that a tenant must be found guilty beyond a reasonable doubt before having to pay, the judge stated.
The law is further flawed, the judge wrote, because it does not give judges the power to force tenants to vacate the property, requiring that the landlord must file a lawsuit to have the errant tenants removed.
"No other jurisdiction criminalizes failure to pay rent or vacate. The federal government also seems to disapprove of this law, as the [U.S.] Department of Housing and Urban Development does not permit landlords using Section 8 vouchers or otherwise maintaining federally subsidized housing to use this law against tenants," the ruling states. "The fact that Arkansas alone here counsels in favor of the failure to vacate statute being a cruel and unusual punishment."
The judge decided the case on appeal from Little Rock District Court, where Judge Alice Lightle convicted 39-year-old Artoria Smith of Little Rock for failure to vacate in August. Lightle found Smith guilty but imposed no punishment.
Smith had been charged based on a complaint from her landlord, Primo Novero of Russellville, that she owed $22,353 in back rent on a $400-a-month, 1,920-square-foot Scotty Court house, which has an appraisal value of $58,450.
Prosecutors, who expressed some reservations about the legality of the law in court filings, haven't said whether they'll appeal the ruling. They had to take up the defense of the law's legality after the attorney general's office earlier declined to do so.
Metro on 01/22/2015