A federal lawsuit challenges Arkansas’ criminal failure to repeal the law, arguing that the law is unconstitutional.
The lawsuit, filed in the US District Court for the Western District of Arkansas on Sept. 2, alleges that Arkansas is the only state in the country that “criminalizes non-payment of rent.”
Under state law, a tenant who defaults on their rent forfeits their right to occupy the property. The landlord can then give the tenant a 10-day notice period. If they do not vacate by the end of this period, the tenant may be charged with a wrongdoing and fined up to $ 25 per day that he spends in the property.
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“There are many other types of contracts in the law and in no other situation is a breach of contract treated as a criminal offense unless it is fraud and our law does not deal with fraud at all,” said Lynn Foster, Law Professor Emeritus at the University of Arkansas at Little Rock School of Law and President of Arkansans for Stronger Communities.
The lawsuit alleges that plaintiffs Cynthia and Terry Easley of Malvern were not evicted after defaulting on their rent. After her landlord replaced her water tank, which no longer worked and left her without running water, the two could no longer raise the rent due to new expenses such as renting a Porta potty and buying bottled water.
According to the complaint, both Easleys have disabilities and chronic health problems and have combined income of less than $ 1,200 a month in Social Security disability payments. The two stopped paying the rent in December 2020, which they could no longer afford, and received the eviction notice in April 2021.
The case argues that the law criminalizes poverty, turning it into a form of asset-based discrimination against the 14th. Among other allegations, she also argues that the law violates the 8th Amendment by imposing excessive fines that are “in are grossly disproportionate to the underlying crime and are imposed without taking into account the tenant’s solvency “.
The Easleys are represented in the lawsuit by UALR Bowen Legal Clinic and the nonprofit legal organization Equal Justice Under Law.
Phil Telfeyan, executive director of Equal Justice Under Law, said they want Arkansas to repeal what he calls a “draconian law”.
“In Arkansas they made it a crime to be poor. It is effectively a criminalization of poverty,” he said.
The most onerous part of the law, Telfeyan said, is the way fines pile up for each day the tenant stays in the apartment after the initial 10-day warning period. Telfeyan said it was like putting people further into debt, and threats of jail time can also force people to evict themselves, potentially becoming homeless and making their situation much worse.
“This is an unfair law. We hope it is unconstitutional, but I think everyone agrees that it is unfair,” Telfeyan said. “They choose the people who are most vulnerable, who are least able to defend themselves.”
Unlike a civil lawsuit, Foster said, a tenant can issue arrest warrants if he doesn’t show up for his trial. Foster said many people in the state may not be aware of the law, stressing that if they receive a notification, they must make sure they appear in court.
If a renter can pay later, the landlord can waive the fees, Foster said. However, if a tenant defaults on their rent, the remainder of their lease is null and the law, unlike many eviction laws, doesn’t provide for lease reinstatement or “cure,” Foster said.
All counties have civil evictions law in place and many counties will not hear criminal evictions, Foster said, with judges and prosecutors finding the law unjust. Garland County is one of the counties where such cases can still be heard.
Data from the Office of Research and Justice Statistics shows the law was applied at least 141 times in Garland County between the beginning of the year and November 4. The defendant was found guilty in at least 45 cases.
“Arkansas is the only state that really strikes the scales of justice so disproportionately that landlords get not only access to a civil landlord-renter court, but also access to the criminal justice system to fight tenants,” said Natasha Baker, associate attorney for equal justice under the law said.
“Our lawsuit does not mean that people can stay on the property forever without paying rent. That’s not what we’re saying at all. There has to be a legal and constitutional process, and there is a civil court system for landlords and tenants that landlords can use “to deal with problems of a non-paying tenant,” she said.
This isn’t the first time the law has been challenged in court, but Baker said that even in cases where the law was successfully challenged, none of the cases set a current precedent across the country.
Previous state challenges to the law were successful but only applied at the county level, Baker said. Federal lawsuits were dismissed either because the law was changed in the course of the proceedings or the tenant had moved out and the case wasn’t a class action lawsuit that would have preserved the tenant’s claim, she said.
They filed their case as a class action lawsuit, although the stage to certify them as such won’t be until the spring, she said. Telfeyan said they heard from several people across the state willing to join the case should it be certified as a class action lawsuit.
The defendants in the case, both the district attorney and the Hot Spring County sheriff, have moved to dismiss, with the district attorney dropping the original charges. Plaintiffs have filed arguments against the dismissal motion alleging that plaintiffs are still running and arguing to continue challenging the law.
The law was also challenged in the state parliament. A bill to repeal the law was tabled in the state House of Representatives earlier this year by Fayetteville MP Nicole Clowney but died on committee.
A 2012 non-legislative commission set up by the Arkansas General Assembly to investigate landlord and tenant laws also recommended repealing the law.
Both the Landlords Association of Arkansas and the Hot Springs Landlord Association failed to respond to requests for comment.
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