Every year, thousands of evictions are filed in Douglas County. Dozens a day sometimes sit in Courtroom 20 of City Hall on Farnam Street, and while landlords usually have lawyers, an overwhelming majority of tenants walk in alone, said Caitlin Cedfeldt, an attorney with Legal Aid of Nebraska’s Housing Justice Project.
As a result, tenants are often outmatched if not outright being taken advantage of, she said.
“You’re never going to know that unless you’re an attorney, or a really savvy tenant, and most people aren’t,” Cedfeldt said. “And I don’t think you should have to have a [law degree] to have a chance in landlord/tenant court.”
But that could change this year. A new bill in the Nebraska Legislature introduced by Sen. John Cavanaugh, District 9 of Omaha, would provide every tenant across the state with the right to an attorney when they walk into the courtroom. The bill goes in front of the Nebraska Legislature’s Judiciary Committee tomorrow, Feb. 4.
Advocates expect the bill is going to have to overcome some big hurdles—similar legislation tends to only work in more progressive cities, let alone across a state as conservative as Nebraska, and cost is always an inhibiting factor. But the benefits can be staggering.
In New York City, eviction filings dropped by a third since implementing their program in 2013 and 98% of people with a lawyer were able to stay in their home. Advocates hope the same could happen in Nebraska.
“Due process [in criminal court] takes time…but that doesn’t mean it isn’t worth it,” Cedfledt said. “So why is this so much different? Especially when you have something like people’s right to be in their home. Housing is such a linchpin for everything.”
Sen. John Cavanaugh was wading into his first days in the Nebraska Legislature when he announced his bill that would provide right to counsel in eviction hearings. Maybe it’s freshman naivety, but Cavanaugh said after winning Nebraska’s Ninth District in midtown Omaha he wanted to target policy that could have an impact.
This bill is a perfect example of that. If all goes well and the bill is advanced out of committee and to the Legislature’s floor, Sen. Cavanaugh said he’s prepared to make this his priority bill.
“People have rights that are meant to be protected by the legal system,” he said. “They’re not experts own asserting those. There are a large number of people who are in eviction court who would have a valid defense if they knew. But they don’t. That’s what this would remedy.”
For too long tenants have been stuck on the receiving end of a legal system weighted against them, Cavanaugh said. That became glaringly apparent during the COVID-19 pandemic. Despite a federal moratorium staying evictions, and despite safety concerns of continuing in-person court hearings as well as the possibility of someone becoming homeless during a pandemic, evictions continued. In 2020, about 3,200 people in Douglas County faced eviction, down from an average of about 5,000 in years past.
The data from the Nebraska Supreme Court does not say how many tenants were represented by lawyers, but Cedfeldt said it’s not the norm. Many tenants don’t show up to court, either believing they’ve already lost or never knowing they had a court date to start with, Cedfeldt said. When they do, they’re often unrepresented, either not seeking help out or believing they can’t afford it, which results in more evictions and bad settlements.
Cedfeldt is one of two attorneys who represent low-income tenants for free in Douglas County with Legal Aid of Nebraska. Some also volunteer their legal expertise through projects like the Milton R. Abrahams Legal Clinic at Creighton University. Because of Legal Aid of Nebraska’s federal funding requirements, she’s not allowed to solicit her service. Tenants must come to her. It’s put her in a tough spot during the pandemic.
“I had to hang back a lot this summer and watch people who shouldn’t have been evicted get evicted,” she said. “There was a trailer park this summer where 15 people got evicted until I finally got a client and was able to put a stop to it. They stopped evicting people after that, so it does make a difference.”
As a result, housing advocates like those with Omaha Tenants United have also assumed a much larger role during the pandemic. Organizers, which have grown from about 30 due-paying members to more than 100 since the pandemic started, will stand outside the courtroom trying to catch tenants before they enter.
Talia Smith, an organizer with the group said they pass along information about the Center for Disease Control and Prevention’s federal moratorium and refer them to organizations like Legal Aid of Nebraska. But by the time people get to the eviction hearing, they’re limited in how much they can do. Sometimes the best they can do is helping the person move once they’ve been evicted.
If Nebraska could pass a right to counsel, that would change so much, Smith said.
“It’s something that shifts the balance in tenants’ favor. Not stronger for tenants, but shifts it away from landlords who are almost always represented to tenants who are almost never represented,” Smith said. “That’s a complete unbalance in the scale. And [if this passes] it also raises our expectation of what’s possible.
Over the last decade, right to counsel legislation in evictions has passed in several cities, including Cleveland, Philadelphia, San Francisco and New York City. So far absolute right to counsel has not been approved statewide anywhere. This year, bills to make that possible have been introduced in five states: Washington, Maryland, Minnesota, Connecticut and Nebraska.
Since learning about Sen. Cavanaugh’s bill, Smith and others have built a coalition of organizations called Nebraska Right to Counsel Coalition, which launches Tuesday, Feb. 9, to gather eviction stories and make the case for why tenants deserve lawyers in the courtroom.
The biggest challenge advocates see for this bill is cost. While a financial assessment hasn’t been finished by the state, paying lawyers to provide free legal help is not cheap.
But then again neither are evictions.
Losing a home can cost someone their job. It can lead to lower educational outcomes for kids who have to bounce around schools. There might not be a lot of money left over for health insurance if you have to continue paying security deposits, movers and late fees. If people end up in homeless shelters, that costs someone money too.
In New York City, an independent research firm estimated the right to counsel program could save the city about $300 million annually. Putting together that kind of research for Nebraska would be challenging, Cavanaugh said, and New York City is very different from Nebraska in about every conceivable way. But that doesn’t mean Nebraska wouldn’t realize the same kind of savings.
“That knowledge of stability allows people to plan, invest in themselves and their future and be more successful,” Cavanaugh said. “It has a huge number of benefits and the cost is relatively minimal.”
But more than dollars and cents, Cavanaugh said this is just the right thing to do.
In court, people deserve the right to defend themselves in court, especially in evictions which have become so regular and carry such crushing impacts.
“When a court takes an unlawful act, for whatever reason, they’re doing that for me, for you, for all of us,” he said. “That really speaks to me. So we should do this for a lot of reasons, but one of them is preserving the integrity of the system, which is to the benefit of the court, the benefit of the landlord, the benefit of the residents and the benefit of all of us outside.”
Making the legal system work better for tenants is not just the aim of this bill. Cedfeldt said the Nebraska Legislature typically hears about four to five housing bills a year. In 2021 there are 14. That may not seem like a large number, Cedfeldt said, but they can all have big impacts on Nebraska’s vague tenant law, proposing updates to how landlords charge late fees, expanding the definition of landlord retaliation, requiring landlords to state a reason for the eviction and providing protections to tenants who were victims of domestic and sexual assault.
It’s an exciting time for advocates and lawyers who for a long time felt isolated in the fight for tenants’ rights.
“Right to counsel is the dream for lawyers like me,” Cedfeldt said.
But there’s no guarantee what will happen. Even if a bill like Cavanaugh’s passes, how the state will implement and run it is up in the air. Though they happen everywhere, evictions look different in urban and rural areas. Showing senators outside Omaha and Lincoln is going to be a challenge, as will figuring out how to get housing lawyers in low-population counties across the state.
But even if the right to counsel bill, or any other progressive housing policy, doesn’t pass, the movement hasn’t failed.
For Smith this is an opportunity to empower tenants by showing them politicians want to hear their stories. And slowly but surely, more people are taking a hard look at this and realizing something has to be done. Now it’s incumbent on her, tenants and other organizers to make sure that forward progress doesn’t slow.
“For the organizing work, the way that becomes more empowering for tenants is getting tenants together, talking about our situations, realizing we’re in a common situation and we’re affected by the same thing,” Smith said. “And then building a path to get these issues dealt with.”