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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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.

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Video: How to Read MassCourts.org with Carl Lindley

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