Victory for Tenants’ Rights

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By Phillip Ensler, Policy Counsel

Low-income tenants throughout Alabama will enjoy greater access to justice due to the Alabama Court of Civil Appeal’s ruling last week in Morrow v. Pake.

In a decision that will affect thousands of tenants, the court reversed the Tuscaloosa Circuit Court, and ruled that tenants who are evicted have a right under state law to later file a lawsuit for a landlord’s illegal actions while they were a resident of the property.

The tenant in the case, Bridgette Morrow, was evicted after the landlord failed to repair the unsafe living conditions she repeatedly reported about the house she rented. The law firm Winston & Straw, LLP and the Civil Legal Clinic at the University of Alabama School of Law recognized the injustice faced by Ms. Morrow endured and represented her for free to ensure she received quality legal representation. They also took on this case to protect the rights of individuals like Ms. Morrow throughout Alabama.

Alabama Appleseed, along with Legal Services Alabama (LSA) filed an amici curiae brief in support of Ms. Morrow and individuals like her in our state. We felt compelled to speak up for the rights of tenants like Ms. Morrow, who too often face eviction proceedings without any legal representation. 

The main question in the case was whether a tenant who is facing eviction is legally required to raise any claims he or she has against the landlord during the eviction proceedings, during which they are likely distracted by the prospect of imminent homelessness, or if they can bring those claims at a later date.

Preserving the right to bring a claim at a later date is essential to ensuring tenants are able to receive justice in situations where a landlord subjected them to substandard living conditions and failed to provide basic services as prescribed in the terms of the lease.

The court unequivocally agreed with Ms. Morrow’s argument that under the Alabama Uniform Residential Landlord and Tenant Act (URLTA) a tenant’s right to challenge their landlord’s illegal actions does not end with their eviction.  

The court underscored the point made in the appeal and in Alabama Appleseed and LSA’s brief that if the Alabama Legislature wanted to require such claims, they would have done so in the URLTA.

The court also agreed with our analysis that the purpose of an eviction proceeding is to focus on the issue of possession of the property, and not necessarily address the conditions and other wrongs the tenant encountered while living there.

As a result of upholding this right, tenants will have more time to find a lawyer and challenge the illegal acts of their landlord, instead of being forced to do so under the stressful and time-constrained conditions of an eviction proceedings.

While Alabama Appleseed is pleased with the court’s ruling, there is still much work to be done to create a level playing field our courtrooms. A vast majority of tenants enter the courtroom without legal representation, while the vast majority of landlords have ready access to quality counsel. As a result, the deck is already stacked against low-income tenants.

To create a more fair justice system, the State of Alabama must provide more and adequate resources for civil legal aid programs—including the Volunteers Lawyers Programs, Legal Services Alabama, and the other clinics and service providers—who provide low-income Alabamians, including many tenants, with vital access to legal representation. Only with such access to counsel will tenants and other low-income Alabamians be more likely to receive access to fair justice in the courts.

2018 Alabama Regular Session – Post-Session Report

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The 2018 Alabama Regular Session began on January 9 and concluded on March 29. Below is a summary of key human rights legislation considered during the 2018 session.

 

Fair Schools, Safe Communities Campaign Legislation

Our communities are safer and our schools fairer when laws and policies are grounded in evidence. It’s time for Alabama’s laws to reflect this common-sense approach.

End Civil Asset Forfeiture

Bill Number(s): SB 213 (Sen. Orr) and HB 287 (Rep. Mooney)

Bill Summary: SB 213 and HB 287 would have ended civil asset forfeiture (replacing it with the criminal forfeiture process in all instances), required transparency in the criminal asset forfeiture process, and prohibited Alabama law enforcement from receiving proceeds from the federal civil asset forfeiture programs.

Why we Supported: Civil asset forfeiture:

  • Disproportionately harms Alabama’s most vulnerable;
  • Incentivizes the pursuit of profit over the fair administration of justice;
  • Turns the presumption of innocence on its head by forcing property owners to defend their property’s “innocence.”

Bill Outcome: SB 213 passed the Senate, but the House failed to take action on the bill. HB 287 did not receive a committee hearing in the House.

Reclassify Marijuana Possession

Bill Number(s): SB 251 (Sen. Brewbaker) & HB 272 (Rep. Todd)

Bill Summary: SB 251 and HB 272 would have reclassified possession of one ounce or less of marijuana as a fine-only offense.

Why we Supported: Alabama’s current marijuana laws:

  • Turn otherwise law-abiding people into felons for merely possessing small quantities of marijuana;
  • Waste taxpayer money and misdirect law enforcement resources;
  • Disproportionately harm African Americans;
  • Needlessly ensnare Alabamians in the criminal justice system.

Bill Outcome: SB 251 received a favorable report from the Senate Judiciary Committee, but the full Senate failed to take action. HB 272 failed in the House Judiciary Committee.

Ban the Box

Bill Number(s): SB 198 (Sen. Singleton) & HB 257 (Rep. Givan)

Bill Summary: SB 198 (Sen. Singleton) & HB 257 would have prohibited a state or local government employer from asking an applicant about their criminal history until a conditional offer of employment is made. Under this law, the government employer would be permitted to withdraw the job offer if the applicant’s criminal conviction was directly related to the job.

Why we Supported: Banning the box would:

  • Help make our communities safer;
  • Better ensure a second chance for Alabamians who have already paid their debt to society;
  • Protect Alabama from having to hire individuals whose criminal convictions are directly related to the job;
  • Help protect state employers from claims of discrimination.

Bill Outcome: SB 198 passed the Senate, but the House failed to take action on the bill. HB 257 did not receive a committee hearing in the House.

Establish Infectious Disease Elimination Pilot Programs

Bill Number(s): SB 169 (Sen. Singleton) & HB 37 (Rep. JD Williams)

Bill Summary: SB 169 and HB 37 would have allowed for syringe services programs in counties where there is a high risk of an outbreak of blood-borne diseases or where an outbreak or epidemic already exists.

Why we Supported: Syringe services programs would:

  • Create a data-driven approach to reducing the harms associated with drug use;
  • Improve public safety by  reducing the number of contaminated needles on streets, on playgrounds, and in trash receptacles, thereby protecting children, law enforcement personnel, and other emergency responders, sanitation workers, and others from needle sticks;
  • Decrease rates of HIV/AIDS and hepatitis C transmission by reducing syringe sharing among injection drug users.

Bill Outcome: SB 169 received a favorable report from the Senate Health and Human Services Committee, but the full Senate failed to take action. HB 37 received a favorable report from the House Committee, but the full House failed to take action.

Prison Expansion

Bill Number(s): None filed

Bill Summary: Legislation to authorize the construction of new prisons was not filed in 2018.

Why we Opposed: This approach fails to address the underlying problems that fuel Alabama’s high incarceration rate. Any solution to Alabama’s prison overcrowding must focus on the root issues:

  • Ending the war on drugs;
  • Prioritizing substance and mental health treatment programs;
  • Removing hurdles to reentry;
  • Expanding alternatives to incarceration.

Bill Outcome: No legislation filed

 

Access to Justice Campaign Legislation

Equal justice under law requires a justice system that provides a level playing field for all Alabamians, regardless of one’s ability to pay. In order to achieve this, the state must ensure access to civil legal services, and protect the the fundamental right to counsel in criminal court.

Remove obstacles facing low-income Alabamians seeking access to the courts

Bill Numbers: SB 36 (Ward)

Bill Summary: SB 36 would have improved indigent parties’ opportunity to have filing fees waived in civil cases due to financial hardship.  The legislation specified that the pleading accompanying the statement of substantial hardship would be considered filed on the date the statement of substantial hardship was filed with the court, and that if the court were to find that no hardship exists, the party would have 30 days to submit payment.

Why we Supported: Waiving filing fees in civil cases due to financial hardship would:

  • Protects the rights of Alabamians;
  • Ensures greater access to the courts;
  • Create more clarity and uniformity throughout the civil justice system.

Bill Outcome: SB 36 received a favorable report from the Senate Judiciary Committee, but the full Senate failed to take action.

Protecting the Constitutional Rights of Indigent Defendants

Bill Numbers: HB 379 (England)

Bill Summary: HB 379 would have created a waiver process for the fee caps on how much appointed lawyers can be paid by the State for their representation of indigent defendants. This legislation would have allowed the trial court judge and the Office of Indigent Defense Services—which oversees and administers funding and payments for indigent defense services—to grant a waiver when the lawyer has shown “good cause” based on objective criteria that demonstrates they have provided the defendant with a level of representation that merits more compensation than the cap allows. The waiver would have allowed for no more than double the amount of the current caps.

Why we Supported: A waiver process for the fee caps would:

  • Helps protect the constitutional rights of Alabamians;
  • Expands access to effective legal representation;
  • Increases access to fair justice.

Bill Outcome: HB 379 passed the House, but the full Senate failed to take action.

 

Additional Priority Legislation

Reform Predatory Lending

Bill Number(s): SB 138 (Sen. Orr)

Bill Summary: SB 138 would have required that payday loans be issued on 30 day repayment schedules, amending current law allowing them to be issued on repayment schedules between 10 to 31 days.

Why we Supported: 30 days to pay would:

  • Effectively cut APR’s in half for many of Alabama’s payday borrowers, which currently runs as high as 456% APR;
  • Reduce the likelihood of borrowers falling into debt traps that lead them to even more dire financial straits (30 percent of payday loan borrowers took out 12 payday loans or more according to the most recent annual data);
  • Reduce the amount of fees low-income borrowers would be required to pay (payday borrowers paid payday lenders more than $107 million in fees in the most recent year alone).

Bill Outcome: SB 138 passed the Senate, but the House failed to take action on the bill.

Challenge Expansion of Alabama’s Broken Death Penalty System

Bill Numbers: HB 161 (Sells)

Bill Summary: HB 161 would have expanded the list of death penalty-eligible crimes to make the murder of a first responder a capital offense, and added to the list of aggravating circumstances four types of victims: law enforcement officers, prison or jail guards, first responders, and children under 14.

Why we Opposed: Alabama Appleseed recognizes that Alabama’s capital punishment system is broken beyond repair, and thus legislation to expand its use cannot be justified. We should all agree that if we have a death penalty then the process should be fair and accurate. Yet, over 10 years ago the American Bar Association found problems throughout Alabama’s death penalty process – from interactions with law enforcement at the beginning to the post-conviction process at the end. In fact, the concerns were so serious that the ABA assessment team recommended a temporary moratorium on executions until the recommendations were implemented. The vast majority of those recommendations have still not been implemented. Alabama legislators should be focused on ensuring Alabama has a fair and accurate death penalty process, not expanding the class of people who can be executed under this broken system.

Bill Outcome: HB 161 passed the House, but failed on the Senate floor.

2018 Alabama Regular Session – Pre-Session Report

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Alabama Appleseed is a non-profit, non-partisan 501(c)(3) organization founded in 1999 whose mission is to achieve justice and equity for all Alabamians. Alabama Appleseed is a member of the national Appleseed Network, which includes 18 Appleseed Centers across the U.S. and in Mexico City.

The 2018 Alabama Regular Session will begin on January 9, 2018. The session is limited to 30 meeting days within a period of 105 calendar days. Because of upcoming elections, we expect the session to conclude early – possibly around March 27, 2018.

Below is a summary of key human rights issues we anticipate will be under active, serious deliberation by the legislature in 2018.

Fair Schools, Safe Communities Campaign Legislation

Our communities are safer and our schools fairer when laws and policies are grounded in evidence. It’s time for Alabama’s laws to reflect this common-sense approach.

To make our communities safer, reduce the burden on taxpayers, and begin to address the staggering racial disparities in Alabama’s criminal justice system, the Alabama legislature should:

End Civil Asset Forfeiture
We expect legislation to be introduced that would end civil asset forfeiture (replacing it with the criminal forfeiture process in all instances), require transparency in the criminal asset forfeiture process, and prohibit Alabama law enforcement from receiving proceeds from the federal civil asset forfeiture programs. Alabama Appleseed supports this legislation because civil asset forfeiture:

  • Disproportionately harms Alabama’s most vulnerable;
  • ​Incentivizes the pursuit of profit over the fair administration of justice;
  • Turns the presumption of innocence on its head by forcing property owners to defend their property’s “innocence.”

Reclassify Marijuana Possession
We expect legislation to be introduced that would reclassify possession of one ounce or less of marijuana as a fine-only offense. We also expect legislation to be introduced that would create more appropriate weight thresholds for all marijuana offenses. Alabama Appleseed supports this legislation because Alabama’s current marijuana laws:

  • Turn otherwise law-abiding people into felons for merely possessing small quantities of marijuana;
  • ​Waste taxpayer money and misdirect law enforcement resources;
  • Disproportionately harm African Americans;
  • Needlessly ensnare Alabamians in the criminal justice system.

Ban the Box
We expect legislation to be introduced that would prohibit a state or local government employer from asking an applicant about their criminal history until a conditional offer of employment is made. Under this law, the government employer would be permitted to withdraw the job offer if the applicant’s criminal conviction was directly related to the job. Alabama Appleseed supports this legislation because it would:

  • Help make our communities safer;
  • Better ensure a second chance for Alabamians who have already paid their debt to society;
  • Protect Alabama from having to hire individuals whose criminal convictions are directly related to the job;
  • Help protect state employers from claims of discrimination.

Stop Sending Children into the Adult Justice System
We expect legislation to be introduced that would reduce the number of children sent into the adult justice system. Alabama Appleseed believes that no child should be referred to the adult justice system because children:

  • Are different than adults – they cannot vote, buy alcohol or tobacco, or gamble;
  • Have an increased aptitude for rehabilitation;
  • Are 36 times more likely to commit suicide when incarcerated in adult facilities when compared with children placed in juvenile facilities;
  • Are 34% more likely to be arrested again when compared with youth convicted of similar offenses in juvenile court.

Establish Infectious Disease Elimination Pilot Programs
Legislation has been pre-filed that would allow for syringe services programs in counties where there is a high risk of an outbreak of blood-borne diseases or where an outbreak or epidemic already exists. Alabama Appleseed supports this legislation because it:

  • Creates a data-driven approach to reducing the harms associated with drug use;
  • Increases public safety by helping to reduce the number of contaminated needles on streets, on playgrounds, and in trash receptacles, thereby protecting children, law enforcement personnel, and other emergency responders, sanitation workers, and others from needle sticks;
  • Decreases rates of HIV/AIDS and hepatitis C transmission by reducing syringe sharing among injection drug users.​

Ensure a Holistic Approach to Criminal Justice Reform
Legislation may be introduced that would authorize the construction of new prisons. Alabama Appleseed opposes this approach because it does not address the underlying problems that fuel Alabama’s high incarceration rate. Any solution to Alabama’s prison overcrowding must focus on the root issues:

  • Ending the war on drugs;
  • Prioritizing substance and mental health treatment programs;
  • Removing hurdles to reentry;
  • Expanding alternatives to incarceration.

Access to Justice Campaign Legislation

Equal justice under law requires a justice system that provides a level playing field for all Alabamians, regardless of one’s ability to pay. In order to achieve this, the state must ensure access to civil legal services, and protect the the fundamental right to counsel in criminal court.

To ensure more equal access to the courts, the Alabama legislature should:

Remove hurdle to low-income Alabamians seeking access to the courts 
Legislation has been pre-filed that would further provide for waiving the filing fee in a civil case due to the individual’s financial hardship. The legislation would specify that the pleading accompanying the statement of substantial hardship shall be considered filed on the date the statement of substantial hardship is filed with the court. The legislation would also specify that if the court finds that no hardship exists, the party shall have 30 days to submit payment. Alabama Appleseed supports this legislation because it:

  • Protects the rights of Alabamians;
  • Ensures greater access to the courts;
  • Create more clarity and uniformity throughout the civil justice system.

Additional Priority Legislation 

Reform Predatory Lending
We expect legislation to be introduced that would extend the loan period to 30 days for payday loans. Alabama Appleseed supports this legislation because:

  • Low-income borrowers face interest rates as high as 456% APR;
  • 30 percent of payday loan borrowers took out 12 payday loans or more according to the most recent annual data;
  • Payday borrowers paid payday lenders more than $107 million in fees in the most recent year alone.

Challenge Expansion of Alabama’s Broken Death Penalty System
We expect legislation to be introduced that would expand the list of death penalty-eligible crimes. Alabama Appleseed opposes any such legislation until Alabama’s capital punishment regime is reformed. We should all agree that if we have a death penalty then the process should be fair and accurate. Yet, over 10 years ago the American Bar Association published a report that found problems throughout Alabama’s death penalty process – from interactions with law enforcement at the beginning to the post-conviction process at the end. In fact, the concerns were so serious that the ABA report recommended a temporary moratorium on executions until the recommendations were implemented. The vast majority of those recommendations have still not been implemented. Alabama legislators should be focused on ensuring Alabama has a fair and accurate death penalty process, not expanding the class of people who can be executed under this flawed system.

Ensuring Access to Justice for Low-Income Tenants

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For many low-income tenants who live in substandard living conditions or face eviction, access to justice is often elusive.

This often occurs because landlords and tenants are not entering the courtroom on a level playing field. Before their case is even considered, the deck is stacked against low-income tenants.

In fact, while 90 percent of landlords throughout the country are represented by attorneys, an overwhelming 90 percent of tenants go through their case without any legal representation.

In order to ensure greater access to justice for low-income tenants in our state, Alabama Appleseed, along with Legal Services Alabama, recently filed an amici curiae brief in support of tenants’ rights in a case before the Alabama Court of Civil Appeals. The case is Morrow v. Pake. The University of Alabama School of Law’s Civil Law Clinic represented the tenant pro bono in the trial court, and Paula W. Hinton and William M. Logan from Winston & Strawn LLP are assisting pro bono with the appeal.

The facts of the case are sadly all-too-familiar for low-income families in Alabama.

In Tuscaloosa, a mother and her children moved into a single-family home. Under the lease, the landlord tried to relieve himself of responsibility for basic needs in the home such as ensuring working electrical and plumbing systems. Soon after moving in, the living conditions became dangerous, including defective smoke detectors and faulty and failing electrical wiring. The landlord refused to address these issues. Desperate to keep her family safe, the tenant attempted to make some improvements on her own. After more attempts to get the landlord to make the necessary repairs, the landlord moved to evict the tenant. Instead of fighting the landlord in court, the tenant moved her family into a new home.

Once the tenant settled into her new residence, she filed a complaint seeking to hold the landlord accountable for his violations of the Alabama Uniform Residential Landlord and Tenant Act (URLTA) (which includes a right to decent housing); his breaches of the rental agreement; and his unjust enrichment from the tenant’s improvements to the property.

The lower court ruled in favor of the landlord, who argued that the tenant was legally obligated to raise her claims during the landlord’s eviction proceeding, and therefore was barred from later raising these claims.

Yet the URLTA clearly does not require a tenant to bring her claims during the eviction proceeding. In fact, the law says the tenant “may” bring the claims during the eviction process – which means that the tenant then may also raise them at a later date.

Moreover, the purpose of the Act is to streamline the eviction process and to keep the focus on resolving the possession issue – and not necessarily other claims either party may have against one another. This is evident by the requirement that the tenant respond to the eviction action within 7 days. It is unfathomable to expect a tenant—who is on the verge of being uprooted from their home—to also obtain counsel and file a detailed counterclaim in such a period of immediate hardship.

In order to ensure equal access to justice and basic fairness for all tenants—regardless of their financial status—the Court of Appeals must uphold the right of tenants to bring counterclaims against landlords in later proceedings.

In addition, the State must provide more and adequate resources for civil legal aid programs throughout the state—including the Volunteers Lawyers Programs, Legal Services Alabama, and the other clinics and service providers—who provide low-income Alabamians, including tenants, with vital access to legal representation.

Especially as we enter the holiday season, it is essential that we protect the most vulnerable among us and uphold the rights of all Alabamians so they can enjoy equal access to justice.

The Constitutional Right to Counsel: Is it being upheld in Alabama?

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The United States Constitution is clear. In criminal cases, the accused have a right to a lawyer. Our Constitution affords this protection in order to ensure that individuals are not wrongfully or unfairly deprived of their liberty.

Yet there is question as to whether this fundamental 6th Amendment right is being upheld in Alabama.

Throughout the South, states and districts are being sued for their failure to comply with the Constitution.

In Louisiana, indigent defendants have asserted that their constitutional right to counsel is being denied, which has led to a legal battle over the state’s failure to provide adequate funding and resources for the state public defender service.

Similarly, indigent defendants in South Carolina recently filed a class action lawsuit against certain jurisdictions for failure to provide legal representation.

Horrifically, one plaintiff in the South Carolina case, a homeless man, has been arrested or given a citation 270 times for the same offense, yet not once has he had an attorney represent him in court proceedings.

These cases demonstrate why we need to know if, how, and to what extent Alabama is ensuring access to counsel for indigent defendants.

Appleseed previously conducted a study of the indigent defense services in four Alabama judicial circuits from 2001-2002. This report has been widely cited for the insight it provided on the practices of indigent defense counsel and the outcomes of those cases.

But, there have been no such studies conducted since then, and there is no comprehensive report on indigent representation throughout Alabama.

In order to understand how and whether the right to counsel is being protected today, Appleseed will soon begin documenting and assessing the quality of indigent defense services in a wide range of counties.

Appleseed’s staff has been traveling to all corners of the state to engage with those in the community who are charged with the duty of ensuring that indigent defendants receive legal representation. We have been meeting with these stakeholders, including public defenders, criminal defense attorneys, judges, and other key Alabamians to hear their views on how the system is currently functioning and what aspects of indigent defense they believe we most need to research.

Alabamians care deeply about protecting the Constitution. This is why Appleseed will conduct this study, and then use the findings to collaborate with partners to ensure that all indigent defendants in the state have access to adequately resourced, quality legal representation.