In a unanimous vote Monday, the Seattle City Council guaranteed the right to counsel to tenants facing eviction proceedings. Sponsored by Councilmembers Kshama Sawant, Tammy Morales, and Andrew Lewis, the legislation sought to get ahead of a wave of evictions feared when the eviction moratorium, put in place to lessen transmission risk and improve public health during the Covid pandemic, is lifted.
Earlier this month, Mayor Jenny Durkan and Governor Jay Inslee extended their respective eviction moratoriums through June. However, once the pandemic eventually subsides, those protections will lapse and tenants will be at risk, especially if they have amassed significant back rent. The Seattle City Council did seek to provide a six-month off-ramp once the eviction moratorium is lifted, but eventually it will be back to normal and eviction courts are expected to be very busy. With unemployment rates high during the pandemic, many people have racked up considerable housing debt.
That’s where the right to counsel comes in. Often landlords can force an eviction through simply by either no contest or steamrolling tenants that in addition to being too broke to pay their rent, also often can’t afford a lawyer either. Tenants can seek services from nonprofit legal aid providers, the Housing Justice Project of the King County Bar Association is the primary provider in the county. However, these organizations have limited capacity and funding.
Sponsors estimate the Right to Counsel legislation will cost an estimated $750,000 in a normal year to pay for the additional services, though they admit that will fluctuate with demand. Backers argue that investment will actually save money overall since evictions are expensive in terms of the King County sheriffs enforcing them and subsequently in City-funded homelessness services for those evicted.
“It is orders of magnitude more expensive not to pass a right to counsel,” Councilmember Sawant said.
Councilmembers stressed the evictions fall hardest on Black, Indigenous and people of color (BIPOC) communities, often simply filing a vacate notice is enough to scare these tenants into leaving their housing without asserting their rights in court. “This is especially Black community members who are getting eviction notices at three times the rate of other tenants,” Sawant said. This helps explain why Black and Indigenous people are also vastly overrepresented in our region’s homeless population.
“The 2018 report Losing Home: The Human Cost of Evictions [by the Housing Justice Project] found 87.5%, nearly nine out of 10, tenants who are evicted end up homeless,” Sawant said. “Some tenants even died after being evicted.”
The imbalance in court is magnified by landlord and property management consolidation. Despite a mom-and-pop landlord trope trotted out when new tenant protections are added, corporate landlords account for a majority of evictions, Councilmember Sawant said pointing to a Private Equity Stakeholders study of evictions across the country that showed thousands of evictions continued despite the Center for Disease Control prohibiting them and federal subsidies aimed at rent relief and avoiding evictions.
“The statistic out of New York, which has a robust right to counsel law and has for some time, that 86% of the people who were represented in an eviction proceeding avoided an eviction, which suggests to me in the way our eviction system is set up and law around evictions and the courts and how these hearings are conducted and the traditional expectation of who does and does not have representation in those proceedings has led to thousands–hundreds of thousands nationally–of illegal evictions,” Councilmember Lewis said. “When you have counsel in a courtroom and an advocate that can stand with you to address the merits of the case that your landlord is bringing, tenants have been able to stand up, and hopefully this will have a deterrent effect…”
While the American legal system promises equal protection under the law, the US Supreme Court stopped short of guaranteeing the right to counsel and taking on poverty as a protected class, which makes the equal protection boast ring hollow. Incidentally, the Amicus podcast this week covered how the Supreme Court appeared close to enshrining right to counsel and other poverty protections in the progressive Warren Court era, but President Richard Nixon launched an all-out attack on liberal justices, chasing Justice Abe Fortas off the court with a smear attack and swinging the court to the Right with four appointments during his presidency. If not for Nixon, a national right to counsel may have been established long ago.
‘Means test’ debate
Much of the time Monday was spent debating an amendment introduced by Council President M. Lorena González that required tenants affirm they can’t afford a lawyer to receive City-funded legal aid. The tweak came at the suggestion of the City’s legal department which feared the law would otherwise succumb to a challenge under the State Constitution requirement that gifts of public funds only go toward the needy or “indigent” in legalese. González modeled the standard she added after the one in the City’s Immigrant Defense Fund.
“I believe that most individuals who need the access to legal aid are going to be able to easily, simply, and in collaboration with service providers… I believe this language will minimize legal risk of having this law survive a legal challenge,” González said.
Councilmember Sawant disagreed, arguing this amounted to a means test that would “humiliate” tenants and lessen uptake of the program. Much of the public testimony at the meeting echoed that argument.
However, those arguments did not win over any of her colleagues. Councilmember Teresa Mosqueda said that requiring tenants to provide income verification documentation would burden tenants and have a chilling effect, but that simply having them check a box would not. Meanwhile, Councilmember González countered the humiliation point by arguing that the Housing Justice Project was a trusted partner with a track record of helping tenants, not humiliating them.
Councilmembers are not at liberty to discuss the executive sessions they had including the one on the legality of Right to Counsel proposal without González’s amendment. However, Councilmember Lewis alluded to the executive session, saying “we all heard the advice” and suggesting the risk of the original legislation being invalidated was serious.
Thus, after much debate, the box-checking amendment passed 8-1 with only Sawant opposed.
Pedersen passes competitive bidding amendment
Councilmember Alex Pedersen was a leading force in delaying the vote for two weeks, arguing they needed more time to review the bill language. He introduced an amendment directing the Seattle Department of Construction and Inspections to put the legal aid contract out to bid via a Request for Proposals (RFP) after a one-year grace period. That amendment passed by a 6-3 vote with Morales, Mosqueda, and Sawant opposed.
“I think it might be more into the weeds than necessary for SDCI,” Councilmember Mosqueda. “It’s not necessary from what I understand because they go through a process on their RFPs on a regular basis.”
Councilmember Lisa Herbold said the bill’s existing language allowing a better-qualified agency to take the contract in the future was probably sufficient, but in the spirit of collaboration and in the hope that Pedersen would vote for the bill she would back the amendment. That argument carried the day, and Pedersen’s largely symbolic amendment passed, perhaps guaranteeing his vote.
Tenants gearing up for next fight
Monday evening a coalition of tenant-focused groups (including The Urbanist) hosted a event launching the Stay Housed, Stay Healthy campaign to expand tenant rights throughout the region, starting with King County Council legislation that includes just cause eviction and other tenant protections.
The event included heartbreaking stories from tenants who have grappled with housing insecurity during the pandemic (and before it), sharing how destabilizing that was. People lost their health care and gender-affirming care, struggled to find or keep work, and their kids struggled to keep up on their studies. The mounting debt weighs on the psyches of tenants. The cavalier way our system doles out evictions seems to be a terrible thing to do a human being and a poor way to run a housing system.
In addition to the tenant rights package introduced by King County Councilmembers Jeanne Kohl-Welles and Girmay Zahilay, Councilmembers Sawant and Morales also spoke. They promised more tenant protections at the Seattle level, such as closing the end of tenancy loophole in Seattle’s just cause eviction law. Rent control remains very much on the menu for Sawant, although first the Washington State Legislature needs to repeal its rent control ban.
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