Posted August 25, 20194:50 pm
Written by Michael McIntyre in The Plain Dealer on 8/25/2019
CLEVELAND, Ohio — The Miranda rights police read to people arrested on suspicion of crime make it clear how important legal representation is: “If you cannot afford to hire a lawyer, one will be appointed to represent you.”
That right has the full force of the Constitution behind it, upheld by the U.S. Supreme Court in Gideon v. Wainwright. Anybody who has watched “Law and Order” is familiar with it.
And it makes sense. Without a lawyer in criminal court, you’ve got no chance.
But Gideon applies only to criminal cases, not civil. So if you face eviction or some other issue in housing court, which are civil matters, and you can’t afford a lawyer? Good luck.
When a landlord makes an allegation against a tenant -- such as nonpayment of rent or breaching a lease -- the case ends up in court. That’s a fine place for it to be. If a tenant has failed to pay, or violates the rules of a lease, the court is the arbiter, and if eviction is warranted, that’s where it will be granted.
But when one side has a lawyer and the other doesn’t, it’s just not fair. What if the landlord violates the rules? What if level-headed negotiation might result in a tenant staying and paying, which is better for tenant and landlord? That’s unlikely to happen when a tenant has no advocate.
It’s been more than 13 years since the American Bar Association urged federal, state and local governments to make legal counsel a right in “adversarial proceedings where basic human needs are at stake, such as those involving shelter, sustenance, safety, health or child custody.”
That’s not an argument for excusing those at fault. It’s simply an acknowledgment that lawyer against non-lawyer -- in the legal arena -- is inherently unfair. And in Cleveland, recent statistics show, only 1% to 2% of tenants are represented by counsel. The majority of landlords have lawyers.
“Our court systems are established in a way that assumes everyone has a lawyer,” said Colleen Cotter, executive director of the Legal Aid Society of Cleveland. “If people don’t have a lawyer, right off the bat the court system doesn’t work as it is designed.”
Cleveland City Council took the first steps to fix that Aug. 21 with the introduction of legislation that would provide free legal representation to families with children living at or below the federal poverty line.
Extensive planning by the Housing Justice Alliance led to the legislation. The alliance includes members from Legal Aid, City Council and the Cleveland Metropolitan Bar Association and the Cleveland Academy of Trial Attorneys. United Way of Greater Cleveland will take the lead in managing the program. Funding, which will be nearly $400,000 for the first year, is still being worked out, but United Way will kick in as will the city. Data will be collected and analyzed to see whether the community benefits.
“This legislation is not about tenant vs. landlord,” said United Way President and CEO Augie Napoli. “It’s about stabilizing the person in need to prevent eviction.”
He said Cleveland has a chance to set an example, being the first city in the Midwest with such a right-to-counsel law. New York City was the first to pass a right-to-counsel law in 2017.
Cleveland Housing Court Judge Ron O’Leary praised the local effort and said it will be a valuable part of a comprehensive strategy, along with his court’s mediation program and education sessions for tenants and landlords.
“Eviction is a lose, lose,” he said, as landlords lose money and tenants lose stability.
He said his court, which sees about half of the 20,000 Cuyahoga County eviction filings each year, doesn’t rubber stamp eviction filings, even when a tenant is not represented and doesn’t show.
Still, his court usually grants the evictions. “The attorneys that represent landlords know what the evidence is that we require,” O’Leary said. “For the most part, landlords don’t file cases unless they have the evidence to prove their case.”
In Cuyahoga County, 80% of landlords cited nonpayment of rent as the reason for eviction actions.
Said O’Leary: “If it’s truly just an issue of the tenant didn’t have the money and nonpayment is the reason for eviction, having the best lawyer in the world isn’t going to do the tenant any good.”
Cotter disagreed: “On the surface, there may be the right to evict, but lawyers resolve problems all the time through negotiation. What is the right thing to do and what is in the best interest of all parties?”
She said often tenants withhold rent because of problems with the property or landlord. Sometimes, rent is missed because of emergencies and United Way might help make that right and keep a tenant in the home. Finally, when it is a matter of nonpayment, a lawyer might help to negotiate a smooth non-eviction departure. Keeping the mark of eviction off someone’s record is key, because past evictions make it difficult and more expensive to rent in the future.
And United Way, Napoli said, intends to guide needy tenants to its other services to help stabilize their situation, including emergency funds to help make a back payment and stave off eviction.
Cleveland City Council President Kevin Kelley, a member of the Housing Justice Alliance, said council is ready to withstand inevitable backlash.
“The studies are done. It’s just the political will now,” Kelley said just before the legislation was introduced. “We’ll take some shots and we’ll get some heat from landlords, but that’s life.”
If O’Leary is right, landlords will benefit as much as tenants from a more collaborative legal process that leads to fewer evictions.
And if they benefit, the community benefits.