An Act Promoting Housing Opportunity and Mobility through Eviction Sealing (HOMES Act)

Eviction sealing refers to hiding the names of plaintiffs and defendants named in summary process (eviction) cases.

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Eviction Sealing Talking Points: An In-Depth Essay

Eviction sealing is a class of proposals that seek to reduce housing barriers by preventing eviction records being used in rental screening. The idea is that redacting or withholding some, all, or a portion of the public records pertaining to summary process (eviction) proceedings will prevent misuse. Landlords tend to strongly oppose eviction sealing.

What Eviction Sealing Advocates Say

Advocates of eviction sealing have identified a group of renters who experience disproportionately high housing barriers on account of past evictions. They say such renters appear on rental applications as if they wear a “Scarlet Letter ‘E’ ” for ‘eviction,’ the way Hester Prynne wore a “Scarlet Letter ‘A’ ” for ‘adulterer’ in the novel The Scarlet Letter by Nathaniel Hawthorne. Having once been evicted, no future landlord will rent to them.

Examples of eviction-related housing barriers include:

  • A renter who was taken to court by mistake, because the landlord was confused about which unit or individual they were serving.
  • Minor children who are listed as defendants on eviction notices, even though they were not responsible for the rental agreement or breach.
  • Households who experienced a period of low income resulting in eviction, housing instability and/or experiencing homelessness, who now have adequate income.
  • Households whose rental agreements were terminated “no fault” who cannot move in the required notice period, overstay, and generate an eviction record.

Once an item like an eviction record appears on the Internet, it is hard to take it down. Eviction advocates therefore argue that all public records should be sealed from the first moment of court procedure, and only unsealed in certain circumstances.

The list of circumstances under which documents pertaining to an eviction could be published is limited and varies by proposal. In most proposals:

  • Evictions would be public if they result in a judgment (a decision by judge or jury) for nonpayment or lease violation;
  • Evictions would remain secret in “no fault” evictions, without a specific reason given;
  • Evictions would usually remain secret in any case dismissed by the plaintiff; and
  • Evictions would usually remain secret in any case that did not result in a final judgment, regardless of the original reason for eviction or the motivation behind dismissal.

Some proposals for eviction sealing would not publish “agreements for judgment” (mediated agreement), others would.

Eviction sealing proposals also stipulate how long a published eviction can remain public. Eviction records might remain public indefinitely or might become automatically sealed again after a period of time. It might be possible to request records be sealed given certain circumstances, like having paid off a previous judgment (similar to criminal law).

Advocates of eviction sealing claim it will not achieve the desired level of privacy unless it also gags landlords to prevent informal sharing of eviction-related information, especially over private message boards, chat groups, or conversation. For this reason, there are usually standards proposed like those that pertain to credit reporting agencies. Under eviction sealing, landlords would not be able to publish information about a renter’s creditworthiness except according to strict guidelines. Some proposals go further and attempt to ban all speech about renters, including “manner of living.”

What the Court Records Currently Say

The staff at the Housing Court and District Court who hear summary process (eviction) cases work hard to ensure that public records are relevant to the public, complete, and truthful. Court records objectively describe what happened and how justice was served. Court records do not get into “he said, she said” or other subjective details. Court records also do not collect or display personally identifiable information. A typical online court record looks like this (actual case but names changed):

09H85SP000335 Landlord, Larry vs. Tenant, Tina
Case Type: Housing Court Summary Process
Case Status: Closed
File Date: 01/26/2009
Initiating Action: SP Summons and Complaint – Non-payment of Rent
Status Date: 06/16/2009
Property Address: 74 Wall Street 1, Worcester MA 01604
01/26/2009  SP Summons and Complaint – Non-payment of Rent
01/26/209   SURCHARGE 185C:Entry of Action filed (Section 466 – M.G.L. c. 185C, §19)  SURCHARGE  Receipt: 11945  Date: 01/26/2009
01/26/2009  SUMMARY PROCESS: MGL Chapter 185C, Section 19; CHAPTER 262 SECTION 2  Receipt: 11945  Date: 01/26/2009
01/27/2009  Scheduled
Event: Summary Process Trial
Date: 02/05/2009  Time: 09:00 AM
Result: Not held but resolved
02/05/2009  Agreement for Judgment 
02/17/2009  Motion by Larry Landlord to issue execution
02/18/2009  Scheduled
Event: Motion Hearing
Date: 02/26/2009
Time: 09:00 AM
Result: Allowed
02/26/2009  Event Resulted
The following event: Motion Hearing scheduled for 02/26/2009 09:00 AM has been resulted as follows:
Result: Allowed  
02/26/2009 
Judgment Date:  02/26/2009
Judgment Type:  Final Judgment
Judgment Method:  Agreement
Judge:  Justiciar, Honorable Jane
Judgment For: Landlord, Larry
Judgment Against: Tenant, Tina
Terms of Judgment:
Date Interest Begins:  01/26/2009
Date Judgment Entered:  02/26/2009
Days of Interest:  31
Daily Interest Rate:                       
Single Damage Amount:  1700.00
Filing Fee and Surcharge:  135.00
Other Costs Paid to Court:  5.00
Other Costs:  30.00
Costs Total:  170.00
Damages Total:  1,700.00
Judgment Total:  1,870.00
Further Orders:
06/16/2009  Case Disposed

The online court records do not contain:

  • Social security numbers, dates of birth, or other unique identifiers that would let a reader know definitively who was a party to the case.
  • Evidence including text messages, photographs, or rental agreements.
  • Testimony including statements made at court and written arguments.
  • Rationale for decisions.
  • Moral judgment on who was right or wrong.

Attorneys may be able to find evidence and testimony online through their portal. The public may be able to obtain evidence and testimony in person at a courthouse. Unless a decision is published by the judge, the rationale will never be known. There will never be personally identifiable information (this is not collected unless it is entered into evidence).

The case above shows that the tenant owed the landlord $1,870. A landlord using this information to screen would be able to infer a likely match between their applicant and this record only if the defendant name matches the name on their rental application, and if the address also matches. Otherwise, nothing else is known. Is this the same Tina Tenant? Why did rent go unpaid in this case? What was the condition of the apartment when rent was withheld? If this is Tina, which of her circumstances have changed that make this case irrelevant to her current application? Landlords must inquire outside the court records to find out if this case is a match or is housing relevant.

Summary of Eviction Sealing Flaws

Eviction sealing as a public policy is flawed in many ways:

  1. There is already a process for sealing select housing court records;
  2. Housing court records are highly relevant on rental applications;
  3. Sealing eviction records exacerbates systemic sexism, racism;
  4. More data, not less, helps renters show innocence;
  5. Renters can use public data to screen landlords, too;
  6. Secrecy requires licensing of journalists;
  7. Secrecy facilitates corruption and nepotism; and
  8. Secrecy erodes bedrock principles.

 

Eviction Sealing Flaw One: There is Already a Process for Sealing Select Housing Court Records

Eviction sealing proposals in Massachusetts seek to enact new sections of law, without reference to existing law, as if there were currently no means of sealing court records. Under existing statute, the court already have authority to seal or delete court records in certain circumstances.

For instance, MGL Chapter 186 Section 12 says that if a tenancy is terminated because an agency of the federal or state government fails to pay the renter or the landlord an assistance payment, “the court… shall… if all rent due with interest and costs of suit has been tendered to the landlord… treat the tenancy as not having been terminated.” This establishes “payment in full” as the condition under which the legislature has authorized sealing records of eviction. The wording could be expanded to cover additional instances where the landlord has been repaid in full, even if the original nonpayment was not related to government default.

Alternatively, the process for sealing criminal records is laid out in MGL Chapter 276 Section 100A. This section provides an explicit procedure for how court records shall be sealed.

Criminal records, including juvenile records, are not sealed upon filing. Rather, they may be sealed upon request after a period of good behavior has rendered the previous court record irrelevant.

Any properly drafted eviction sealing legislation ought to begin with reference to either or both of these sections of the law. We should strike them, differentiate from them, or expand on them to make a change, rather than create conflicting procedures.

Eviction Sealing Flaw Two: Housing Court Records are Highly Relevant on Rental Applications

Eviction sealing advocates say that landlords have little or no legitimate purpose looking at eviction records. On the contrary, landlords have an obligation to themselves and their existing renters to ensure that each new resident is likely to contribute to the community financially and in terms of following the rules.

A minority of so-called “professional tenants” abuse the court system and live rent-free by bouncing landlord-to-landlord. Some deal with their neighbors and their landlord in a confrontational, entitled style once they have the keys. Although rare, these abuses cast a long shadow and give many addresses a bad name. A single bad renter can clear out all adjacent units over the next year (by adversely impacting the desirability of renewing a lease). Landlords must be able to screen out applicants based on past behavior as a service to their current renters and neighbors.

Noisy and destructive renters are a boogeyman that stalls zoning reform and density. If it were possible to ensure that “bad renters” don’t take up residence, resistance against expanding rental housing in single family neighborhoods would decrease. Renter behavior is highly relevant to both microeconomic success and macroeconomic housing policy.

Eviction Sealing Flaw Three: Sealing Eviction Records Exacerbates Systemic Sexism, Racism

Advocates of eviction sealing argue that eviction has a disparate impact on women and renters of color, and that income, credit score, and other non-eviction metrics should count more on a rental application than whether someone ended up in court. Their conclusion does not follow from the facts.

It’s true that eviction disproportionately affects women and renters of color. This is because women and renters of color have disproportionately, unfairly lower income and less borrowing ability due to systemic sexism and racism in employment and credit. Renters affected by these systemic issues will make less and have less ability to buffer against financial setbacks. Such renters are more likely to experience housing instability. The only thing entirely within the control of such renters is their communication approach during such setbacks, and whether they end up in court.

If a renter unable to pay says nothing to the landlord, or says “I can’t pay and I’m not leaving,” that is a very different customer relationship than a renter who says, “I can’t pay and I hope you will work with me to either move out early or pay late.” In the former case, a landlord will have to go to court for lack of communication. In the latter case, the landlord will likely delay court filing in an effort to avoid litigation expense against a well-meaning customer. Court will cost three month’s rent, on average. Landlords can work with renters who are poor. What we can’t work with is non-communication and no plan.

Eviction sealing prevents a landlord from learning about a renter’s housing history, and therefore removes an opportunity to have a hard conversation and learn about communication ability. Landlords who cannot inquire about past evictions will instead screen tougher on the numbers, exacerbating the effect of systemic sexism and racism, for which eviction sealing is no cure. Without substantial reform in areas unrelated to housing (e.g., workplace equality, reparations), it is unlikely that women and renters of color will see improving scores on rental applications. Whereas before landlords could assign 20 points for a clean court record, now landlords will require higher income or higher credit to qualify for the same apartment. More marginal applications will be declined. Eviction sealing will disproportionately harm those of us it is meant to protect.

Eviction Sealing Flaw Four: More Data, Not Less, Helps Renters Show Innocence

To the extent that public court records are vague, they are harmful to good applicants. Consider the following example (real story submitted by a member, with names changed):

“Tina was evicted for nonpayment from her last place eight months before I met her.  Since then, she along with her boyfriend and two kids have lived in a homeless shelter.

“Reason for eviction:  Tina and Tony both worked for the same company, which abruptly went out of business.  They were not able to financially recover from the unforeseen loss of both incomes.

“Eight months later, their combined gross monthly income is $4,200.  I was prepared to accept them despite the eviction because this double loss of income had since been corrected and was unlikely to occur in the future.

“She disclosed the eviction, claiming that she owed the landlord zero dollars.  MassCourts.org does not divulge the details because it was settled in mediation.

“We called the previous landlord for details.  He confirmed the nonpayment eviction and said she owed him $1,600 in back rent, much different from the $0 she has told us.  He confirmed that Tina had moved out on the date that she claimed and left the place in good condition.  He said he no longer had the written mediation agreement/judgment.

“This damning piece of information would have been the end in a lot of landlords’ screening. What reason did the other landlord have to lie? Tina had already left his unit. But Tina wants my unit, and does have an incentive to lie.

“Before rejecting Tina and her family, I asked Tina if she could put her hands on the judgment.  As fortune would have it, she found the court papers.

“The mediation agreement clearly states that the last month’s rent and security deposit would be used for the remaining tenancy and that she owed zero dollars.  The landlord lied.  Tina had told us the truth.

“Tina almost didn’t have a home because of a bad landlord reference.  If masscourts.org were to show the detailed judgments generated form mediation, which make a substantial percentage of housing court cases, then landlords can make decisions based on the facts.  If landlords are rejecting someone because of an eviction where facts that are actually beneficial to the renter are hidden, then perhaps MORE facts are the answer instead of NO facts.

“For people like Tina, the current system places the burden of documentation entirely on the renter.  Eviction sealing will only increase the burden on the renter.  Do the renter advocates know that?  If Tina didn’t have that piece of paper, she would have remained homeless indefinitely because we still would have called the previous landlord regardless.  We would have been forced to take the landlord’s word over hers and would have rejected her.  It was a court record that saved her.

“I guarantee that if I asked Tina, who has now been our resident since September 2017, if she would be willing to attest to this, that she would.  She is very grateful that a court record got her family a home.”

This example shows how objective court data can be more freeing than inaccurate or gossip-style landlord references.

Eviction Sealing Flaw Five: Renters Can Use Public Data to Screen Landlords, Too

The housing crisis has reduced housing supply to the point where many applicants do not have wide choice of landlord, but every applicant still has some measure of choice. All renters can use the court records to screen the landlords themselves, just as landlords are screening them.

Consider a landlord whose Registry of Deeds record indicates they have owned their three-unit building for 20 years, and whose MassCourts.org record indicates they have never once taken a renter to court. The two combined mean they have an eviction rate of zero over 60 unit-years. Compare that to a landlord in the same market who has owned a six unit building for ten years and has evicted five households, a rate of one per 12 unit-years. Does it mean one landlord was very lucky, while another was not? Perhaps. But equally possible is that these two landlords likely have very different approaches to conflict resolution.

In the same way court records shine a spotlight on professional renters, they can shine a spotlight on landlords who are quick to evict.

This information is particularly useful to subsidy administrators helping their clients navigate a difficult search, parents and guardians helping their children find their first college apartment, and others who take care and exercise due diligence when shopping for a new home. All of this critical landlord background is readily available in the public records, but would not be available under eviction sealing. And eviction sealing would preferentially hide those landlords whose claims were the most frivolous, since those cases would not result in judgment rising to the standard requiring publication.

Eviction Sealing Flaw Six: Secrecy Requires Licensing of Journalists

Because landlords could share their own bad renter references even if the court records were sealed, eviction sealing proposals seek to restrain landlord speech as well. But since it’s recognized that democracies require access to government records, eviction sealing proposes to permit legitimate journalists to read court records. Who is a legitimate journalist? Is a Boston Globe reporter a journalist? How about a MassLandlords reporter? How about a landlord who is a blogger?

In the United States, anyone can become a journalist or an investigator of government abuse without license from the government. This is an essential freedom. Imagine the opposite, where only licensed journalists can investigate malfeasance, or can criticize the government. What public official would grant a license to a journalist who might attack them and deny them reelection? It only takes one round of self-serving politicians or officials to eliminate all honest journalists from the profession, leaving the remaining licensees lackeys or uncritical yes-men.

Licensing of journalists has been effected many times throughout history, but never in a free democracy. Soviet Russia, Nazi Germany, and Communist China have relied or still rely on journalistic licensure to maintain control of their state propaganda.

Many of the proposals for eviction sealing cannot be implemented because they rely on defining a journalist apart from a landlord. This cannot safely be done.

Eviction Sealing Flaw Seven: Secrecy Facilitates Corruption and Nepotism

Eviction sealing seeks to seal all records upon filing to prevent that information from being exposed to public scrutiny. In sealing all eviction records from the outset, eviction sealing facilitates corruption and nepotism.

When a well-connected plaintiff or defendant appears in court, the only thing keeping the trial fair is the character of the judge and the public spotlight. Eviction sealing eliminates the major enforcer of justice – the public spotlight – and leaves the character of the judge the only determinant between fairness and corruption.

Imagine a scenario where the landlord is evicting a renter but doesn’t really have all the evidence needed to prove their case. Imagine the renter is unrepresented by an attorney, does not speak English well, and has no hope of attracting media attention. What expectation of fairness do we have if the landlord and the judge are regular golf partners, the existence of the eviction case is a secret, and the rationale for any decision will never be known?

Landlords have the most to gain from secret courts, because landlords often have a greater degree of money and favor to bestow upon judges, clerk magistrates, or other housing court staff. Landlords (and to a lesser extent, well connected renters) may obtain results in secret cases that otherwise ought not be obtained.

Secret courts are sadly a danger in Massachusetts. As the Boston Globe spotlight series on “show cause” trials proved, we already have secret pre-criminal courts. We suspect they have for years resulted in unfairly favorable treatment to politicians, officials, their relatives, and other influencers, to the detriment of their victims or accusers. The corruption runs so deep the Chief Justice of the Supreme Judicial Courts, Ralph Gants, oversaw a denial of the Boston Globe’s request for access.

In Boston Globe Media Partners LLC vs Chief Justice of the Trial Court, Chief Justice Gants denied the Globe’s request for full access to show cause hearings, which are a preliminary step on the road to criminal prosecution. In a nutshell, the judge argued that it was not necessary to prosecute for a crime if everyone could work it all out behind the scenes. The court argued a hypothetical “hockey fight” scenario, where one parent assaults another in the bleachers at a high school hockey game:

“Returning to our youth hockey altercation example, where a clerk-magistrate finds probable cause to believe that the accused parent struck or pushed the complainant parent, and therefore committed a misdemeanor assault and battery, and where the prosecutor’s office has not communicated an intent to prosecute the accused parent, the clerk-magistrate may decline to issue a criminal complaint and instead explore… ways to resolve their dispute outside the criminal justice system.”

What ways are there to resolve cases outside of the criminal justice system? Mediation, for one. Bribery, for a second. In other words, the Chief Justice’s court wrote that you can break someone’s nose in front of an entire school, and if you can “persuade” the clerk magistrate that you will work it out with the parent privately, you ought to be free to go without criminal charges and without a public record. A favor here, a little muscle there, and the case will never be heard of. Does it sound like secrecy is designed to help the underdog, or the corruptly well connected?

It is not possible to know whether well-connected landlords or renters are being disproportionately helped or harmed by court proceedings unless on any given case the public can inspect the process. Eviction sealing eliminates all hope of knowing, and it stands to reason that renters won’t be the ones who benefit.

Eviction Sealing Flaw Eight: Secrecy Erodes Bedrock Principles

Eviction sealing advocates have argued by analogy: “If a criminal defendant is innocent until proven guilty, then so is a renter. Therefore, nothing negative should be published about a renter until their case has been decided and they are found to be ‘guilty’.” This analogy is misleading for several reasons and erodes bedrock principles.

First, eviction sealing would put a moral judgment on merely being named in a lawsuit. Currently, there is no moral judgment with being named in a lawsuit. Anyone can be sued for any reason. Sometimes people are sued rightly. Sometimes people are sued wrongly. The point is, until a case is decided, it’s impossible to know. The fact of the lawsuit itself is not something shameful or pejorative, and experienced landlords know this all too well. It is important to emphasize outcomes rather than process, to focus attention on decisions rather than complaints.

Second, if “innocent until proven guilty” requires secret housing court records, then surely it requires secret arrests. Nothing can be more unfairly damning on a rental application, especially with a small mom and pop landlord, than having been arrested for something from which you have yet to be exonerated. But consider what happens when arrests are made secret. China has secret arrests, and has “disappeared” unknown numbers of dissidents and others against whom the state feels antipathy. Such arrests may have good intentions, say the Chinese, but the result is unambiguously evil: family, friends, and loved ones cannot know what has happened or come to the aid of the detainee. As we have described above, secrecy breeds corruption. The bedrock principle of “innocent until proven guilty” does not override the bedrock principle of public access to government process, and to argue otherwise is to argue to absurdity.

True, landlords may use both court records and criminal records in tenant screening. But there are laws in place prohibiting discrimination on the basis of arrests alone. Landlords are allowed to consider convictions, but not arrests. The same kind of discrimination protection is missing in the housing space and could easily be implemented, akin to the criminal protections, without the need for secrecy.

Eviction Sealing Conclusion

Having considered all of the foregoing, it is clear that sealing all records preemptively does not fulfill a legitimate public purpose, and in fact has serious adverse consequences for those of us it is intended to protect. Sealing on a case by case basis could make sense via expansion of existing statute, rather than by a completely new “eviction sealing” overhaul. Likewise, offering additional protection against unfair discrimination could be accomplished without giving up the public access required in a self-governing society.

The Session 191 HOMES Act

When politicians try to make things secret, we should worry. We should worry more when they promise that greater secrecy will lead to greater economic opportunity. So we should all be very worried – landlords, tenants, and the public at large – about 191-S.824 filed by Senators Joseph Boncore and Sal DiDomenico, a bill titled “an Act promoting housing opportunity and mobility through eviction sealing” with the ironic acronym HOMES.

This eviction sealing bill, and its house duplicate 191-H.3566, would ban the public from knowing about ongoing eviction cases, which currently are searchable at MassCourts.org. If enacted, eviction sealing would lead to higher rents that would reduce both housing opportunity and mobility. It would also erode a bedrock constitutional principle by making secret what is and ought to be publicly available court information.

“Justice in a self-governing society requires secret courts be the exception rather than the norm, or not used at all.” Executive Director Doug Quattrochi

Overview of Eviction Sealing

“An Act Promoting Housing Opportunity and Mobility through Eviction Sealing” would seal the records of summary-process cases until after judgment. Readers know how few eviction cases go far enough to have an official judgment (think cash-for-keys, or cases dismissed following move-out, with money owed but where the landlord has given up ever getting it).

In this way, the eviction sealing bill would prohibit the public from knowing about the existence of both public Housing Court litigation as well as possible private losses. If a judgment enters, the public would be allowed to know, but only for three years. After three years, the information will disappear down the memory hole.

The eviction sealing proposal would apply to all current cases, not only cases filed after the law goes into effect. Keep in mind that some cases last for two years or more, and that a renter may be applying for their next apartment while litigation is secretly ongoing at their last.

Is this a quirky, no-hoper, dead-on-arrival kind of bill? Hardly. Thirty (30) state legislators from the progressive wing of the Democratic party have already signed on to eviction sealing to demonstrate their support. They are the ones who are making the running these days.

Eviction Sealing will Lead to Higher Rents and Fewer Rental Homes

Sealing court records is not inherently wrong. Secrecy makes sense for matters of national security, domestic violence, and juveniles, situations where disclosure of information would put people at risk of real harm. But summary-process cases are not in that category.

The obvious goal of eviction sealing is to prevent landlords from screening out the frequent fliers, i.e. tenants with regular appearances in Housing Court. The “advocates” think that landlords should not be allowed to know whether an applicant has been the defendant in Housing Court.

Conversely, of course, tenants will not know which landlords are trigger happy, i.e. prone to seek eviction as a matter of routine. From the standpoint of a renter shopping around for good landlords, this seems like information worth having. But perhaps the “advocates” do not think ordinary people should be privy to this information, or perhaps have not thought to use it themselves.

Right now, the availability of this information affects the behavior of landlords and tenants, even if landlords are the primary end users:
Landlords search the court records in order to find out whether the would-be tenants have been taken to court by previous landlords. The greater the number of cases, the greater the risk of the tenants proving to be unreliable payers of rent, or disruptive to their community.

Tenants know the public records are being searched and, therefore, many (perhaps most) try to avoid being taken to court. This is a helpful incentive for communicating with the landlord about problems, for paying rent promptly, and for abiding by the other terms of the lease or rental agreement. It also helps encourage tenants who receive a notice to quit to actually comply, thereby obviating the need for costly litigation in the public courts.

The fact that an applicant has been a summary-process defendant is not dispositive. It can lead to a conversation that lets the applicant explain what happened. It is one factor among several that landlords take into account when choosing among applicants. Landlords can choose how much weight to give this information and decide accordingly. The proponents of eviction sealing do not believe that landlords should be free to make this decision; instead they think that politicians should make the decision for them.

Under eviction sealing, landlords will have less information on which to base their decision. Statistically, the likelihood of any given would-be tenant turning out to be a tardy/non-payer will go up.

How will landlords insure against the increased risk? One way is the obvious one: raising rents. The other way is to move on, find another way to make a living, and exit the business, which is the only sense in which this bill would “promote mobility.” When the laws become so strict that all the scrupulous landlords are driven away, we will be left with only the least well-prepared landlords still operating.

Landlords will Share their Eviction Data

It is worth noting that prior to the creation of MassCourts.org, landlords aggregated their own eviction lists by self-reporting evictions to other landlords. This practice would surely resume through private channels, with no public oversight of what was being said of individual renters. Surely the objective court records are superior to what used to happen.

“Secrecy is the freedom tyrants dream of.” Bill Moyers, Journalist

“An Act Promoting Housing Opportunity and Mobility through Eviction Sealing” would fly in the face of the presumption of public access to court records that is well-established in Massachusetts. How well established? Almost 400 years. Article 48 of the Massachusetts Body of Liberties enacted in 1641 states:

“Every inhabitant of the Country shall have free liberty to search and
review any rolls, records or registers of any Court or office.”

That liberty is no less important today than it was in 1641. Secrecy breeds suspicion and distrust in government and in the fair administration of justice. Massachusetts courts have upheld this liberty from colonial times onward. It is a bedrock constitutional principle.

The fact that some legislators would sacrifice the public’s right to know merely to curry favor with one small constituency (a subset of repeat offender tenants and their politically vocal allies) is disturbing. The fact that they do so to the detriment of the majority, including the tenants who work hard, play by the rules, and expect their new neighbors to be screened as carefully as they were, is even more disturbing. It’s no secret: eviction sealing is one bill that ought not pass.

Eviction Sealing Supplementary Testimony: An Act Promoting Housing Opportunity and Mobility through Eviction Sealing (191-H.3566 and 191-S.824)

By Peter Vickery, MassLandlords Legislative Affairs Counsel

August 26, 2019, Joint Committee on Housing, State House, Boston, MA 02133

Dear Committee Members:

Thank you for your attention to my remarks on behalf of MassLandlords at the hearing in July.  By way of a supplement to my prior written testimony (attached for ease of reference) and to further address the point that Representative Livingstone raised, I offer the following:

The eviction-sealing bills would prohibit the public from seeing court records in any summary process case unless and until the case (if it is for fault or nonpayment) results in a judgment.  Judgments in no-fault evictions would never become public.  Sealing has long been the exception to the well established rule whose rationale Justice Oliver Wendell Holmes described:

“It is desirable that [judicial proceedings] should take place under the public eye … because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.”

Cowley v. Pulsifer, 137 Mass. 392, 394 (1884) (Holmes, J.) quoted in Republican Co. v. Appeals Court, 442 Mass. 218, 222 (2004).  At the hearing Representative Livingstone pointed out, quite rightly, that the presumption of public access is not absolute.  In the context of criminal records, the Supreme Judicial Court (SJC) has held that there is a common-law presumption of public access, and although this presumption is not the same as a right guaranteed by the First Amendment “the basic framework remains the same: sealing may occur only where good cause justifies the overriding of the general principle of publicity.” Com. v. Pon, 469 Mass. 296, 313 (2014).

However, as the SJC noted, unlike the state courts, the First Circuit Court of Appeals does consider public access to be a right guaranteed by the First Amendment.  “The public has a First Amendment right to judicial documents and records because without them a full understanding of judicial proceedings would be impossible.”  Globe Newspaper Co. v. Pokaski, 868 F2d 497, 509 (1st Cir. 1989).  Certainly, the right is not absolute and attaches “only to those governmental processes that as a general matter benefit from openness.” Id.  But it is worth noting that the federal courts are unequivocal: the First Amendment guarantees the public’s right to access.

In addition, I believe that the exception set forth in the proposed §30 (c)(5) (allowing the court to permit inspection for “scholarly, educational, journalistic, or governmental purposes only”) would require judges to decide the parameters of the word “journalism.”  Requiring people to establish to the satisfaction of a judge that they are engaged in “journalism” is likely to have a chilling effect on members of the public who are not affiliated with traditional news organizations.  Committee members may be familiar with the contested meaning of “news media” in federal cases arising under the Freedom of Information Act (FOIA), e.g. Cause of Action v. FEC, 799 F. 3rd 1108 (2015).  Unlike the proposed bill, which does not define “journalism,” FOIA contains this provision:

“In this clause, the term ‘a representative of the news media’ means any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. In this clause, the term ‘news’ means information that is about current events or that would be of current interest to the public. Examples of news-media entities are television or radio stations broadcasting to the public at large and publishers of periodicals (but only if such entities qualify as disseminators of ‘news’) who make their products available for purchase by or subscription by or free distribution to the general public. These examples are not all-inclusive. Moreover, as methods of news delivery evolve (for example, the adoption of the electronic dissemination of newspapers through telecommunications services), such alternative media shall be considered to be news-media entities. A freelance journalist shall be regarded as working for a news-media entity if the journalist can demonstrate a solid basis for expecting publication through that entity, whether or not the journalist is actually employed by the entity. A publication contract would present a solid basis for such an expectation; the Government may also consider the past publication record of the requester in making such a determination.”

5 USC §552 (a)(4)(A)(ii)(II).   The foregoing provision is quite lengthy, and in defining the term “news media” it includes a sub-definition of the word “news.”  I am certainly not suggesting that the Legislature should follow suit by amending the eviction-sealing bill so as to define the word “journalism.”   Rather, I quote FOIA simply to point out: (1) that absent a statutory definition the task of construing “journalism” will fall to judges, who will look to precedents and persuasive federal equivalents; and (2) whichever branch defines the word, whether legislative or judicial, the effect will be to privilege some speakers over others. This is another way in which the bill would impinge upon the speech rights guaranteed by the First Amendment.

Thank you for your time, attention, and ongoing service to the People of Massachusetts.

Faithfully,
Peter Vickery, Esq.

 

Eviction Sealing Loophole: Stipulations vs Judgments

The bill says that records will be unsealed when a judgment enters, but increasingly (especially in the northeast division of the housing court) we’re seeing “stipulations” entered. These are treated differently from judgments, and would not be disclosed under the current eviction sealing text. But in terms of culpability, a stipulation against the landlord or the tenant has the same significance as a judgment, and ought to be equally public.

Summary for Member Alert

The following was sent to members as an alert, and gives a useful summary:

On July 16, 2019, MassLandlords testified against eviction sealing at the state house.

Of all the current challenges to good housing policy, An Act Promoting Housing Opportunity and Mobility through Eviction Sealing (HOMES Act, 191-S.824, 191-H.3566) is the most surprising. It states:

… It shall be unlawful to ask an applicant for housing … about such applicant’s tenancy-related litigation history, including receipt of any notice to quit…

The bill would erase MassCourts.org in wide swathes, prohibit landlord comments to one another, and forbid MassLandlords from facilitating conversations about renters.

Walsh: “40,000 Evictions a Year” or “43 Evictions a Day”

At the hearing, Advocates and renters said there is an epidemic of evictions. Boston Mayor Marty Walsh repeated the oft-cited statistics, that there are 40,000 evictions a year, and 43 forced removals a day.

Actually, there are only 8 a day. The actual number of forced removals is not known with certainty, but based on our move-and-store survey, we estimate it to be 3,000 a year, or 80% less than renter advocates say. We have the Boston Globe Magazine to thank for mischaracterizing Eviction Lab data, in their February 19, 2019 article by Jenifer McKim and Alejandro Serrano. McKim and her editor acknowledged our point of view but refused to publish a retraction or a correction.

Renter advocates testified that renters who get taken to court appear in the public record forever, and have to wear a “Scarlet Letter E,” like in Nathaniel Hawthorne’s The Scarlet Letter.

(In the Scarlet Letter, A Puritan minister named Arthur Dimmesdale #meToo’s congregant Hester Prynne, who then has his daughter. Dimmesdale blames Prynne for adultery, slaps a red letter “A” for adulterer on her, and forces her to be a single mom outside the village.)

The HOMES Act would overcorrect the problem. It would hide every bad renter, regardless of whether actually they deserve it:

The court records in any eviction action or in any other civil action covered by this section shall be deemed sealed immediately or upon filing.

Landlords won’t know that their latest applicant is currently being evicted. Did they throw a chair off their porch at 2am trying to hit their ex? Did they let their dog void itself perniciously all over the interior common area hall? Did they cause $10,000 in property damage? However long the trial takes, the worst renters will appear blameless as they apply for their next apartment.

Tenant to Landlord: “I will Financially Rape You”

Landlord testimony at the July hearing was emotional and emphatically opposed. One landlord described how public knowledge of all court proceedings is critical.

Her tenant refused to pay his rent. Instead he used the rent money to hire his own attorney, and with certainty that he would prevail in court, told the landlord, “I will financially rape you.” The judge made the landlord state her home address publicly. Afterwards, the renter tried to burn down the landlord’s house while she was asleep in it. Fortunately, the attempt failed. When she left her home the next morning, she saw with horror burnt-out kindling wedged in her front door. She pulled it out, saved it, and brought it to the hearing.

This renter would appear in the public record only if the landlord is eventually able to win for nonpayment or cause. If this were a no-fault eviction, needed when witnesses are afraid to testify, this case would remain sealed forever:

…A sealed court record in an eviction or other civil action covered by this section shall be made available for inspection by the public thirty (30) days following:

(i) entry of final judgment, after summary judgment or a trial on the merits, for possession or damages in favor the plaintiff in a fault or nonpayment eviction action; or…

When this landlord tried to enter testimony about landlords who were too afraid to testify, the chair cut her short, saying that he was not interested.

Under the chair’s steering, renter after renter told their sob story, many of which were describing public housing violations, subsidy administration ineptitude, and failures of the social safety net. These are all important to correct, but few of these stories had anything to do with eviction sealing. The groundswell of support for eviction sealing was astonishing.

To seal all no-fault records is to aid the arsonists, the abusers, and other criminals in their quest for a new mark.

Renter Advocate: “The Public Records Cannot Be Read by Lay People”

The hearing intensified when the Massachusetts Law Reform Institute testified that the court records were not designed to be read by lay people. In essence, they said landlords were too stupid to know whether a case was relevant.

Well, if we can’t tell the difference between “case dismissed” and “Judgment for $32,715,” maybe we would be allowed to talk to one another about our experiences with a renter? No:

“Consumer report” means any written, oral, or other communication …  bearing on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living

A “consumer reporting agency” is any person which, …  on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties.

A consumer reporting agency shall not disclose the existence of, or information regarding, an eviction action or other civil action sealed or made confidential under this section…

You read it here first. If this bill passes, mentioning your renter on the MassLandlords message board will get us both fined $2,000 per post. If you provide a landlord’s reference, good bad or indifferent, you will pay actual and consequential damages if that renter gets declined.

Past Presentations

Video: How to Read MassCourts.org with Carl Lindley

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