Cases against tenants should be adjourned until they have lawyers

Imagine if the CEO of a large medical center during a pandemic was found to be denying basic, life-saving care to tens of thousands of people because of an administrative rule limiting the amount of care given to each patient. Now imagine the scandal if it was found that the insurance industry was lobbying the medical director.
If the idea of an insurance lobby is not surprising, you won’t be shocked about a landlord lobby either. In the last year, thousands of New York City tenants have faced eviction. They have, under a 2017 city law, a right to counsel (RTC) to defend them in Housing Court. But more than 21,000 have been denied this critical right. We know that with RTC, 84% of tenants stay in their homes, evictions drop, and landlords sue tenants less. Yet, because of the expiration of the COVID eviction protections and the national labor shortage facing all sectors including the legal services groups providing RTC, there are not enough lawyers to take on the cases at the rate that the landlords want.
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New York state Chief Judge Rowan D. Wilson speaks before administering the oath of office to Court of Appeals Associate Judge Caitlin J. Halligan during her swearing-in ceremony at the New York Court of Appeals in Albany, N.Y., Wednesday, June 7, 2023. (AP Photo/Hans Pennink) (Hans Pennink/AP)
Tenants and advocates have been calling on the courts to implement a policy that automatically pauses all cases for as long as is necessary to safeguard tenants’ rights. In the last year, tenants across the city have rallied, accompanied dozens of their neighbors in court and introduced legislation to mandate these solutions. Yet, the court continues to move eviction cases forward at such a rapid pace that tenants who are entitled to RTC are not getting it. This puts landlords at a huge advantage and ignores the spirit of the law.
The courts do not have to make this choice. In many civil cases, particularly those that have especially grave consequences, courts have reasoned that where an incorrect determination could impact a fundamental right, people should not face their court case alone. In fact, some courts believe that their ability to properly function is obstructed where an attorney is not provided to a vulnerable person.
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The Right to Counsel is upheld in New York Family Court and Criminal Courts, resulting in cases being paused until counsel is present. Having a Right to Counsel in Housing Court is equally important. Evictions are the leading cause of homelessness, lead to loss of employment, can lead to suicide, and have negative impacts on mental health as well as children’s behavior and education.
This is a deeply moral issue and one that tenants and members of the RTC NYC Coalition have been making in meetings with key decision-makers. There is also a legal basis to slow cases down. The RTC NYC Coalition has released a new legal memo that makes this case.
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Our research shows that Housing Court judges have the ability to adjourn cases at any time, for any length of time, and for nearly any reason. Our demands are similar to the changes that the courts implemented during and after the COVID-19 pandemic state of emergency.
During the emergency, courts implemented a temporary hold on eviction cases when an attorney could not be assigned. After the COVID-19 emergency expired, the courts implemented administrative orders and directives, rules and procedures that altered the timing and process of eviction proceedings. Our new memo shows that our demands are not only possible, they are legal.
The chief judge of the state has the power to issue an administrative order to stay cases. Not only is it an option for the court to create its own procedure where the law provides none, the Judiciary Law requires the chief judge to establish standards and policies when “hurdles” are preventing legal solutions.
All of our research concludes that any argument that the courts cannot slow down the calendaring of new cases or moving cases forward in the absence of an attorney for an eligible tenant without violating existing statutes is without merit.
Adjourning cases so an attorney can be assigned does not violate any constitutional provisions (Contact Clause, Takings Clause, Due Process Clause). This is because court adjournments are necessary to ensure tenants’ Right to Counsel is meaningfully exercised, and doing so does not fully deprive landlords of any rights or remedies, nor destroy the economic value of their property.
The moral arguments for the courts to uphold RTC are clear. Now the legal ones are too. With a new chief judge, Rowan Wilson, now is the time for the courts to uphold this critical law and set an example for the nation.
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Dillard is a tenant leader with CASA in the Bronx and on the RTC NYC Coalition Steering Committee. Carter is the president of Legal Services Staff Association (LSSA 2320).