Federal judge dismisses challenge to “failure to vacate” law after plaintiffs leave Arkansas

Nation’s only criminal eviction law still stands

By: - August 25, 2022 6:56 pm

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A federal lawsuit challenging Arkansas’ criminal eviction statute, the only one of its kind in the nation, was dismissed Monday in light of the plaintiffs’ move to another state.

The dismissal upholds a “draconian law” and allows the “discriminatory practice” of eviction for failure to pay rent to continue in Arkansas, according to a news release from the legal nonprofit Equal Justice Under Law, which represented the plaintiffs in the suit.

All 75 Arkansas counties and all 49 other states treat eviction for failure to pay rent as a civil matter. But Arkansas law states that anyone behind on rent “shall at once forfeit all right to longer occupy” the rented space.

Under the law, tenants can be charged with a misdemeanor and fined up to $25 per day if they don’t leave the property within 10 days of notice from the landlord.

“In practice, landlords use this law to force tenants to self-evict,” the Equal Justice Under Law statement says. “This strategy is effective, as tenants will abandon their homes to avoid the possibility of criminal prosecution, even if they have legitimate reasons why rent is late or even if the landlord is lying about rent owed.”

Cynthia and Terry Easley of Malvern challenged the law in September 2021 with a lawsuit in the U.S. District Court for the Western District of Arkansas. The defendants were Hot Spring County Prosecuting Attorney Teresa Howell and Sheriff Mike Cash.

U.S. District Judge Susan O. Hickey dismissed the case on procedural grounds because the Easleys’ move to Michigan removed the threat of prosecution.

Hickey’s ruling did not pass judgment on the law itself. In January, she denied a motion from Howell and Cash to stop the proceedings.

The lack of judgment was fortunate, but the dismissal unfortunate, and the attorneys hope to challenge the law again, Equal Justice staff attorney Natasha Baker said.

“If we can find someone else who is subject to this law that we’re challenging, then we plan to move forward,” she said.

The Easleys fell behind on rent in August 2020 after a broken water pipe left their apartment without running water and their landlord did not fix the pipe, according to Equal Justice. They had to buy water and rent a portable toilet, so they could no longer afford rent and later received a criminal eviction notice.

They continued to live in the same apartment complex while the lawsuit was pending, but they received a civil eviction notice in February from the new landlord, who bought the property in November. Baker said the new landlord did not renew the Easleys’ lease and filed to evict them on that basis.

The second notice fell under Hot Spring County’s civil eviction process, and a judge ordered them in April to move out within 30 days. The Easleys complied with the order and “bounced around a bit” before moving to Michigan, where they are closer to family and currently in a senior living facility, Baker said.

“It’s a good temporary situation, but it is unfortunate that they had to go there at all because it all stems from the fact that their landlord didn’t provide them with running water,” she said. “[There was] this domino effect of being criminally evicted, then civilly evicted and then having to find new housing as a disabled couple in their sixties.”

The Bowen Legal Clinic at the University of Arkansas at Little Rock also represented the Easleys alongside Equal Justice Under Law.

Two previous challenges to the criminal eviction law were also dismissed, in 2017 and 2020, because the plaintiffs eventually were no longer under threat of prosecution.

Also in 2017, the Arkansas Legislature removed the threat of jail time from the failure-to-vacate law.

The Easleys’ case met the same fate as the previous two challenges to the law, but throughout, their attorneys sought more plaintiffs to form a class-action suit in hopes of keeping the case alive long enough to reach a ruling.

The lawyers filed for class certification in March even though they had not found more plaintiffs. Hickey never ruled for or against that motion, Baker said.

Circuit courts in Pulaski, Craighead, Poinsett and Woodruff counties have all made rulings since 2015 declaring the failure-to-vacate law unconstitutional.

“Many other Arkansans are and will continue to be affected by this law,” Equal Justice Under Law executive director Phil Telfeyan said in the news release. “Though the court’s ruling is disappointing, we have great confidence that we will see success in a future lawsuit.”

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Tess Vrbin
Tess Vrbin

Tess Vrbin came to the Advocate from the Arkansas Democrat-Gazette, where she reported on low-income housing and tenants' rights, and won awards for her coverage of 2021 flooding and tornado damage in rural Arkansas. She previously covered local government for The Commercial Dispatch in Mississippi and state government for the Columbia Daily Tribune in Missouri.