In February 2021, the Nehemiah/Justified Anger Court Observer program was expanded to include observing eviction hearings and trials in the Dane County Court. A group of about a dozen court observers have received training in the eviction process. Few if any of us have first-hand experience with eviction, either as tenants or as landlords, but we think this gives us a unique perspective.
In the courtrooms, there are legal professionals who are familiar with the laws and manage this process day in and day out, there are landlords who have varying degrees of experience and knowledge, and there are tenants, who are often understandably stressed and rarely have deep legal knowledge. We don’t view the hearings and trials with either professional expertise or the stress that would come with being a party to the eviction process. Instead, we are able to see whether the process makes sense to the average person.
Since February 2021, we have observed over 400 hearings that represented more than 300 individual cases. We have noted that hearings are often fast-paced, with lots of legal jargon and limited opportunity for tenants to understand the process and their options. Landlords are more than twice as likely as tenants to have the assistance of an attorney. This is important to note because, in the words of one of the court commissioners, “the scales of landlord-tenant law in Wisconsin definitely bend toward landlords.”
Landlord-tenant rights and responsibilities are difficult to navigate in the best of times. Though the feds created a funding program to ease the eviction-prevention crisis during the pandemic, they didn’t release program requirements until well into March 2021. Many state and local governments that were trying to set up programs waited, because they didn’t want to risk doing it wrong and having to pay back money. The rules and requirements changed at least three times between March and August. Also, while they provided funding for rental assistance, the feds only allowed an extremely small percentage to be used for administration or staff to run these programs. We are fortunate in Dane County that the City of Madison stepped in to provide some funding so that organizations could pay staff.
For all these reasons, we are especially aware of the need for tenants to have greater access to resources and legal representation to provide a more equitable process and to improve outcomes for tenants. Two cases rose to the surface over the last few weeks that illustrate the need for advocacy to help tenants navigate this confusing system.
The first instance centered around a federal regulation that has the impact of discouraging landlords from taking federal money to cover back rent owed by a tenant while they still occupy the unit. If a landlord accepts funding to pay back rent, they are not able to evict the tenant for 30 days. Right now, that means that some landlords would prefer to forgo the opportunity to receive back rent or have the tenant apply for funding after they have left, rather than accept Covid relief funding because they want to evict the tenant immediately. In one such hearing, the situation was contentious, with accusations of lack of communication on both sides and it looked as though the case would have to go to trial. However, a volunteer mediator with the Tenant Resource Center was able to help the parties devise a payment plan and agree on a move-out date. Assuming all goes according to plan, this approach will keep the tenant from having an eviction on record.
The stakes are different – and advocacy even more important – if a case goes to trial. For example, we observed a hearing before a judge where the tenant, a young person who had never faced eviction, had represented herself at the initial hearing. In negotiations with her landlord, she had agreed to conditions without having a good understanding of her options. The non-profit Legal Action of Wisconsin took her case, and her attorney was able to slow the process down to give the tenant more opportunity to explore possibilities.
The scenarios in the cases described above are not uncommon, and the assistance of a volunteer mediator from Tenant Resource Center and an attorney from Legal Action led to outcomes that are likely better for all parties involved. Unfortunately, these outcomes are few and far between, because the need for tenant support is far greater than these organizations can cover on their own. A 1963 United States Supreme Court decision (Gideon v Wainwright) solidified the right to an attorney, even if you can’t afford one, in criminal cases, but there is no equivalent right for eviction cases. Some states have laws that ensure anyone facing eviction has legal representation, but Wisconsin is not one of them.
Through the Justified Anger Court Observer Program, we hope to have an impact on the eviction process in our county by slowing the process down, encouraging court officers to speak in common language, and to assure that both tenants and landlords understand and use the resources available to settle disputes and resolve eviction and tenancy issues. Over the long term, we would hope to see Wisconsin expand the right to representation for all tenants.
This article was written and contributed by the Justified Anger Court Observers Advocacy Team