Maryland lawmakers passed legislation last session providing access to counsel for some low-income tenants facing eviction, creating a pivotal new protection for renters at risk of losing their homes.
How to pay for the program is still an open question.
“That’s probably the most critical need,” said Vicki Schultz, who is chairing the Access to Counsel in Evictions Task Force created during the 2021 legislative session.
“Different minds from the judiciary to the legislature to the executive branch can differ” about what components are needed to create a successful access to counsel program, Schultz said.
“But we all know that we cannot implement this program without funding, without resources,” she said.
Finding ways to fund access to counsel in evictions will be a key focus as lawmakers return to Annapolis in 2022.
It will be the second year that tenant protections are at the forefront of civil legal issues considered by the legislature, a sign of the COVID-19 pandemic’s lingering economic toll.
“This is a whole basket of issues that I think really got on the front burner because of COVID,” said Del. David Moon, D-Montgomery, the vice-chair of the House Judiciary Committee.
Attorney General Brian Frosh pushed last session to raise the cost of filing for an eviction in District Court. The legislation failed, but Frosh said he will renew the effort in 2022.
Maryland has among the lowest filing fees for eviction cases in the nation, Frosh said, contributing to a high eviction rate.
“It’s $15 to file a lawsuit that can toss somebody out of their home,” Frosh said in an interview.
The 2021 legislation would have increased the surcharge for summary ejectment cases from a maximum of $8 to a minimum of $120, and would have made $120 the minimum fee for tenant holding over or breach of lease cases. The bill did not make it out of committee, and another bill that would have increased summary ejectment surcharges and filing fees in other civil cases failed on Sine Die.
Landlords and courts would not be able to pass the cost on to renters in Frosh’s proposal, and the money raised from the higher eviction filing fee would go toward funding legal services for low-income clients — provisions that raise concerns for the Maryland Multi-Housing Association.
“The bill exposes housing providers to an unrecoverable fee for every tenant, every month,” said Aaron J. Greenfield, the organization’s director of government affairs. “As such, housing providers would be forced to account for that financial exposure when developing rental prices.”
Greenfield said MMHA supports the use of state or federal funds to support tenant access to counsel, rather than court fees that will be paid by landlords.
Other funding options for access to counsel are also under consideration.
“I anticipate that people will be looking for resources, looking for sources of funding, because they understand that especially in evictions, but also in many other civil cases, people who don’t have attorneys are overwhelmed and outgunned when they go to court,” Frosh said. “Tenants have to navigate a very complicated maze of legal issues.”
A 2020 study of evictions in Baltimore City found that 96% of landlords had representation during court proceedings, while 99% of tenants did not.
The Access to Counsel in Evictions Task Force has asked Gov. Larry Hogan to consider using federal rental assistance money or other COVID-19 relief funds to cover legal help for tenants.
The task force hopes Hogan will apply about $12 million toward legal services, outreach and education for tenants who face eviction, said Schultz, who is associate dean for administration at the University of Baltimore School of Law.
“We think that that is critical because this program is phased in over the course of the next three years,” Schultz said. “We need to begin now, ramping up not only the personnel required but also some of the infrastructure.”
Lawmakers will also be asked to consider a bill that could empower local jurisdictions to introduce “just-cause” regulations for eviction cases.
Del. Jheanelle Wilkins, D-Montgomery, said she will introduce the bill in an effort to ensure consistent rules when landlords decide not to renew a tenant’s lease.
“We want to make sure that we have a reason and a standard when it comes to deciding that someone can no longer have a roof over their head,” Wilkins said. “This is a really important protection for renters.”
The legislation would not mandate just cause in all evictions statewide but would allow local jurisdictions to craft and implement their own policies.
Greenfield called just-cause legislation “fundamentally unfair” because it creates an imbalanced relationship between the two parties to a lease.
“Just-cause legislation infringes upon the property rights of Maryland’s constituents by creating life-tenancies unless a housing provider can meet certain thresholds,” he said.
Wilkins also plans to introduce other tenant protection legislation, as she did in 2021. She said the proposals will include requiring landlords to show they are working with tenants who are seeking rental assistance and limiting the effect of COVID-19 related failure-to-pay rent judgments on tenants’ ability to find housing in the future.
Other civil legal issues
Wilkins said she will also introduce legislation to limit qualified immunity for police officers, a change that would have major effects on civil litigation.
Qualified immunity protects government officials, including police, in lawsuits that allege civil rights violations. Advocates for police reform say that the doctrine shields police from accountability in brutality cases.
Maryland lawmakers passed a series of police reform bills in 2021, but an adjustment to qualified immunity was not among them. Wilkins’ bill would address qualified immunity at the state level.
Her 2021 bill, which did not make it out of committee, would have limited civil immunity for police officers who cause harm while acting in their official capacity, though victims would not be able to bring legal action “if the officer’s act or omission did not rise above ordinary negligence, was not outside the scope of law enforcement training and standards, or did not constitute misconduct.”
Legislators may also revisit the perennial issue of changing the statute of limitations for lawsuits that allege child sexual abuse. Maryland lengthened the statute of limitations in 2017, granting sexual abuse survivors until their 38th birthday to file claims against their abusers.
But the law did not apply retroactively, so survivors whose claims had already expired did not receive a chance to sue abusers or the institutions they say covered up sexual abuse.
Efforts to abolish the statute of limitations entirely, or to create a “revival window” that would temporarily reopen old claims, have sputtered in the General Assembly in the years since 2017.
Legislation introduced during the last session did not receive a vote in the Senate’s Judicial Proceedings Committee and was opposed by the Maryland Catholic Conference. There is disagreement among legal experts about whether the passage of the 2017 law made future expansions of the statute of limitations unconstitutional.
David Lorenz, who leads the Maryland branch of the Survivors Network of those Abused by Priests, said he is weighing whether to rally survivors to support statute of limitations reform in 2022.
“It is devastating, psychologically, to a lot of them to get hope up about a bill they could use,” Lorenz said. “I was very careful about trying to do that last year.”