August 29, 2019:- If you like government secrecy and think the legal system would function much better out of the public eye, you are going to love a proposal called “eviction sealing.”
Some Massachusetts lawmakers would like eviction cases sealed so that the public (in particular, landlords) will not be able to know who has been taken to Housing Court. The bills are H. 3566 and S. 824, and if enacted they would move Massachusetts further away from an important constitutional principle, one that Oliver Wendell Holmes, Jr., described more than 100 years ago:
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.). Based on the idea that sunlight is the best disinfectant, as another jurist put it (quoting James Bryce), Massachusetts court records are available for public inspection unless a specific statute, court rule, or order says otherwise. Public access is the default setting. But here is a video of Professor Esme Caramello, clinic director of the Harvard Legal Aid Bureau, explaining to the Poverty Law Clearingouse why summary-process records should be an exception.
In the video Professor Caramello says that “we saw a dramatic increase in barriers to finding new housing once all the Housing Court records went online” and that allowing public access to Housing Court cases “allows landlords to say ‘if ever a person tries to assert their rights, I don’t want to have anything to do with them,’ so it really creates a major access-to-justice problem.”
This is consistent with what Professor Caramello and Annette Duke of the Massachusetts Law Reform Institute wrote in an article titled “The Misuse of MassCourts as a Free Tenant Screening Device,” published in the Fall 2015 edition of the Boston Bar Journal making the case that landlords should not be allowed to know whether a prospective tenant has been party to a case in Housing Court.
Blacklisting tenants like these merely because their names are online in MassCourts erects unfair barriers to finding an apartment for anyone who has ever been to court in a housing case – tens of thousands of people every year – and could place especially vulnerable people with limited housing options into a spiral towards homelessness.
Another scholar, Paula A. Franzese, makes a similar point in a law review article titled “A Place to Call Home: Tenant Blacklisting and the Denial of Opportunity,” 45 Fordham Urban Law Journal 661 (April 2018):
Blacklists stigmatize, precluding future renting opportunities and rendering affordable housing options even less accessible. What is more, the lists skew market efficiencies, creating “false negatives” of prospective renters who would in fact be fine tenants. The very specter of being blacklisted can impose a considerable chilling effect, dissuading tenants from exercising otherwise assured rights and remedies.
These are strong arguments against landlords making decisions based solely on Housing Court records. A rental-property owner who declines to rent to applicants because their names appear in the Housing Court records could be missing out on great tenants. Rental property owners do not want to miss out on great tenants because (as tenants’ advocates seem to forget occasionally) owners are in the business of renting homes to people, not rejecting and evicting them.
But, appealing as their equity-based arguments may be, Professors Caramello and Franzese do not explain why a tenant’s interest in secrecy should outweigh the public’s interest in access to information, which is a right protected by the First Amendment, according to the First Circuit Court of Appeals. The professors’ solution is not narrowly tailored to serve a compelling government interest, which is the test courts use in deciding whether the government is justified in restricting rights guaranteed by the First Amendment. A blanket ban is quite the opposite of narrow tailoring, really.
Nor do they address the likely consequences of hiding this information from landlords. If landlords are not allowed to manage risk by deciding how much weight to give Housing Court records (because the Legislature has clawed the records back from the public domain) they will insure against the unknown risk in the obvious way: by raising rents.
The State with the highest homeless population in the nation, California, enacted eviction sealing in 2016. According to this article in the Mercury News the bill’s sponsor called it “a commonsense law… that will prevent working families from becoming homeless.” This article from the Wall Street Journal and this one in the Sacramento Bee tell us just how accurate that prediction turned out to be. True, homelessness in California as a whole did drop by 1% in 2017-18 — after years of going upward — as CNN reported. But as NPR, Curbed, and the Guardian pointed out 2019 is another story, with homelessness in Los Angeles (the county with the largest population) rising dramatically this year.
Is there really no way to tackle the eviction-records issue in Massachusetts short of stripping the public of a First Amendment right, becoming more like California, and raising rents?
Last month in the State House I testified against eviction-sealing on behalf of MassLandlords. The proposal is just one among a cluster of landlord-tenant bills pending before the Legislature, e.g. the return of rent control, providing tenants with publicly-funded lawyers, prohibiting evictions without “just cause,” and creating a tenants’ right of first refusal.
For details of my testimony, please stay tuned for the September edition of the MassLandlords newsletter.
Peter Vickery, Esq., 