Federal Judge asks Arkansas AG to intervene in case on tenants’ rights law, new bill filed on the issue

A northeast Arkansas lawmaker has filed a measure that would alter the statute criminalizing failure to pay rent in the state’s controversial landlord-tenant law that was ruled unconstitutional by an Arkansas circuit court nearly two years ago.

That pre-filed legislation for the upcoming legislation session comes as U.S. Judge Timothy Brooks on Wednesday (Dec. 14) sent a letter to Arkansas Attorney General Leslie Rutledge, asking the state’s top prosecutor to reconsider her decision not to intervene in a case that challenges the constitutionality of the state statute that criminalizes non-payment of rent.

Sen. Blake Johnson, R-Corning, told Talk Business & Politics that he filed Senate Bill 25 at the request of the Greene and Craighead County Landlord’s Association to address inequities in the law highlighted by a Pulaski County Circuit Court ruling in January 2015.

“My bill is a lower cost alternative that will help [landlords] get their property back,” Blake said.

Blake said he has not talked with other groups concerning his bill, and said there will likely be opposing or competing legislation filed during the session concerning the state’s growing controversy over tenants’ rights laws that critics say are the worst in the nation.

“I figure there will be something else, whether it is my [bill] or a hybrid,” Johnson said. “I was just trying to address the local landlords’ issue and concerns, but there may be a more comprehensive approach. I guess the [landlords] went too far according to the courts.”

That is the view of Jason Auer, an attorney for the Legal Aid of Arkansas office in Craighead County. Although he could not speak directly about SB 25 because of a federal prohibition preventing Legal Aid groups from lobbying and commenting on proposed legislation, Auer said his group and sister organization, The Center for Arkansas Legal Services, filed motions attacking the constitutionality of the criminal eviction statute in a Pulaski County case.

In January 2015, Pulaski County Circuit Court Judge Herbert Wright Jr. issued an order finding the statute “wholly unconstitutional.” Over the next few months, Auer said Legal Aid of Arkansas was able to obtain similar rulings in cases in the First and Second Judicial Districts, which includes Craighead County.

“At roughly the same time as the second judicial district ruling, the chief prosecuting attorney [Scott Ellington] for the Second Judicial District issued a letter directing his deputy prosecuting attorneys to stop all prosecutions of criminal eviction cases due to concerns over the statute’s constitutionality,” Auer said. “To the best of my knowledge, there have been no prosecutions in Craighead County since that time.”

Auer said Legal Aid of Arkansas has teamed with the American Civil Liberties Union (ACLU) and the University of Arkansas at Little Rock’s Bowen School of Law’s Consumer protection clinic to bring an affirmative challenge to the statute in federal court. If the federal court rules that the statute violates the U.S. Constitution, that ruling will have statewide applicability, Auer noted.

“I practice extensively in Craighead County. Since the criminal eviction statute has been struck down, landlords have been using the newer civil eviction statute,” he said.

AG RUTLEDGE QUIZZED BY FEDERAL JUDGE
That federal case – still pending before Brooks in the U.S. Western District of Arkansas – is also why Judge Brooks made a friendly appeal to AG Rutledge to reconsider her decision to not defend the state’s landlords-tenants law, according to federal filings.

In his two-page letter to Rutledge, Brooks suggests to Rutledge that the state’s position would be “well-served” if she filed a so-called “friend of the court” brief for the state of Arkansas in the federal case.

“Although your office was previously served with a copy of the complaint, it appears that you decided, as is your prerogative, not to intervene to defend this statute,” Brooks wrote. “However, I write now to respectfully solicit amicus curiae briefing from your office on this issue.”

In his letter, Brooks noted that Mountain Home City Attorney Roger Morgan, the sole remaining defendant in the case, has now elected to not oppose a motion by the plaintiff asking for declaratory and injunctive judgment in the case, which will have the effect of making the Arkansas law unconstitutional.

“Considering the breadth and gravity of the issues implicated by this motion, I believe that this Court, the parties in this case, and the state of Arkansas would all be very well-served by oppositional briefing, so as to sharpen the presentation of the merits,” Brooks writes. “I further believe that there is probably no one who could perform this service more effectively than the Attorney General for the state of Arkansas.”

Brooks further states that if Rutledge changes her mind and files an amici curiae brief with the court, he would work with her and the other parties in the case to prepare a briefing schedule that accommodates everyone. Brooks asked Rutledge to respond by Jan. 9, 2017, the day the 91st General Assembly begins.

“The Attorney General has received the letter and is reviewing it. I don’t have anything further at this time,” said AG spokesman Judd Deere.

LEGISLATURE BACKS TASK FORCE IDEAS
During the 2011 general session, Act 1198 created the non-Legislative Commission on the Study of Landlord-Tenant Laws to study, review and report on the landlord-tenant laws in Arkansas and other states.

Commission members included appointees of the Arkansas Realtors Association, the Landlords’ Association of Arkansas, the Affordable Housing Association of Arkansas, the Governor, the Arkansas House of Representatives, the Arkansas Senate, the Arkansas Bar Association, and the deans of the University of Arkansas and UALR Bowen School of Law. Former Gov. Mike Beebe’s appointee, Stephen Giles, a Little Rock real estate attorney, chaired the commission.

In January 2013, the commission issued a report to the legislature that recommended reforming state law. Specifically, the commission recommended repealing the criminal eviction statute, in conjunction with implementation of a streamlined civil eviction process, and enactment of an implied warranty of habitability. Other recommendations include changes that would bring existing law more in line with the federal Uniform Residential Landlord Tenant Act.

“There are good landlords out there who already voluntarily include many of these recommended protections in their lease agreements,” Commission Chair Stephen Giles said after the task force released its recommendations. “If implemented, these reforms will not only put landlords and tenants on more equal footing, but also make it more difficult for unscrupulous landlords to compete with the good ones.”

In the 2015 session, legislation sponsored by Rep. Greg Leding, D-Fayetteville, would have required “a minimum habitability standard” for tenants of resident property in Arkansas. That bill died in committee when the 90th General Assembly adjourned.

Gail Blucker, executive director of the Landlords’ Association of Arkansas, which was a part of the legislative task force, could not be reached for comment for this story. The statewide property-owners group, which styles itself as an organization of roughly 1,000 “mom and pop” landlords, represents local member chapters across the state. However, a statement on the group’s website shows that the LAA’s legislative committee supports changes to the state’s landlords tenant law, adding that “the vast majority of landlords are good people who take care of their properties, there are some landlords who do not, and who allow their rentals to fall into disrepair.”

“The Landlord Association is in support of a Habitability Bill with minimum standard requirements that is fair to both landlords and tenants. (We) are also in favor of an eviction law that would be uniform statewide and provide a quick, simple and inexpensive method of removing bad tenants from our properties,” the group said. “We look forward to working with representatives during the 2017 session in order to accomplish such laws.”

Julie Mullenix of Little Rock-based Mullenix & Associates, speaking on behalf of the state Realtors’ association, said ARA is looking at a “legislative remedy” to repeal parts of the law that are unconstitutional with regard to tenants’ rights. Mullenix said the law prior to changes codified in the statute were upheld in past court decisions over a decade ago.

“We have several pieces of legislation that we will file during the session that will attempt to maintain the balance that Arkansas has always had (between) the rights of landlords and tenants,” said Mullenix, whose firm offers governmental, PR and lobbying services to a number of trade groups and businesses in Arkansas.

Rep. Leding said he plans to file a similar bill to his 2015 legislation in the upcoming session, adding that he’s had discussions with lawmakers on both sides of the aisle looking at different aspects of the Arkansas landlord-tenants law that was codified into law in 2005. However, the Fayetteville Democrat said the odds are still “not good” of passing legislation addressing the habitability issue that limits the rights of tenants.

“The Realtors’ association has fought us every step of the way on this legislation, which makes Arkansas the only state without an implied warrant of habitability,” Leding said. “It’s amazing that Arkansas is the only state you can go to jail for failure to bank your rent.”