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July 30, 2014

High Court Rules Against Innocent Tenants Who Attempt to Clear their Names

The Washington State Supreme Court ruled last week in a critical case involving a tenant family who was wrongfully sued for eviction, and the court denied the tenant’s attempt to redact their name from the court record in order to preserve their ability to seek housing. This decision will have enormous consequences for innocent tenants who win in court against a landlord’s illegal eviction.

Even though tenants Ignacio Encarnación and Norma Karla Farias were current on their rent, the new landlords for their property sued to evict them in an attempt to dissolve their valid year-long lease. After the tenants got legal representation from the Northwest Justice Project, the landlord agreed to have the case dismissed, and even offered to give the tenants a positive reference.

However, even with a positive reference from their landlord, the tenants were categorically denied housing due to the presence of the eviction record. It is now a common practice for landlords to hire tenant screening companies who mine public databases for these records that result in a denied housing application, regardless of the outcome of the case.

In a remarkable turn of events, when the landlord did not contest the tenant’s attempt to redact their name the Court Clerks office refused the Judge’s order to so, and entered pleadings with the court to block the tenant from protecting their rental reputation. In fact, the Court Clerk’s office has also testified against legislation in Olympia to allow a tenant to remove their name from the record, claiming it to be an administrative burden and unconstitutional.

In a split 5-4 decision the court found that the public’s right to unfettered access to the court record outweighed the tenant’s need to secure safe and stable housing. “Ignacio Encarnación and Norma Karla Farias were sued for unlawful detainer even though they had a valid lease and did nothing to warrant eviction,” Justice Susan Owens wrote for the four-member lead opinion. “Although we sympathize with Encarnación and Farias, and other renters in similar situations … [t]he public’s interest in the open administration of justice prohibits the redaction of the indices in this case.” Chief Justice Barbara Madsen provided the fifth vote, writing in a concurrence that courts should never be permitted to redact names from the superior court database for any reason.

However, the only groups interested in these records are the tenant screening companies that make a profit by reselling the court data back to landlords. The court also overlooked the fact that sealing and redacting names is permitted in many other contexts, such as paternity cases, certain juvenile records, and even some criminal convictions. Four justices dissented, including Justice Steven Gonzalez who wrote that,

“the lead opinion has ignored the careful findings of the trial court judge, overstepped the bounds of our abuse of discretion review, and minimized the reality of the housing situation facing Encarnación, Farias, and their three children.”

Open court advocates, including the Seattle Times Editorial Board, applauded the decision, declaring that after tenants the next in line to remove their records will be a troubled doctor or a pedophile, even though this decision would have no bearing outside the landlord-tenant context.

This unfortunate perspective disregards a growing academic body of research that has found that eviction is itself not a symptom of poverty, but a cause of poverty. Harvard Professor Matthew Desmond authored a substantial study that showed evictions having a disproportionate impact on African American women, perpetuating cycles of homelessness and poverty. According to records from the Washington State Administrative Office of the Courts, data from their Judicial Information System shows that in 2007 there were over 28,000 eviction filings across the state. As rents continue to rise many face economic evictions, with each year that passes a growing second class of renters become marked as unrentworthy.

Observing that the practical effect of the wrongfully-filed eviction lawsuit would cause the family “substantial difficulties in finding housing,” Justice Gonzalez added that Encarnación and Farias demonstrated a sufficient privacy interest to justify redacting the court index: “Having access to acceptable housing is not just a compelling interest on its own, but, practically speaking, it is also necessary to secure other fundamental rights and interests. Access to employment, education, voting, health care, and most other public and private interests is greatly diminished, if not eliminated, when stable, suitable housing is unavailable.”

A major industry revolving around tenant screening has developed in Washington State and across the country, with hundreds of companies offering these services which fall under a patchwork of laws that rarely are enforced. Tenant advocates are concerned that the damage from this decision will be the chilling effect on Washington State tenants who wish to avail their rights, who would then be deterred from contesting an illegal action by a landlord.

“If the mere filing of an eviction lawsuit is enough to forever limit your housing options, what tenant would ever try to defend against an illegal action by their landlord? What does it mean for our legal system when the court is both the only venue to access justice but also the cause of people being denied housing?

For tenants, you are guilty, even after being proven innocent.”

Said Jonathan Grant, Executive Director of the Tenants Union of Washington State, which submitted an amicus brief in support of the tenants. The organization reports that they speak to many tenants who have faced homelessness because of an unfair eviction record that painted the tenant in a false light.

Notably, Justice Owens pointed in her lead opinion to the possibility of legislative relief as an appropriate solution: “Despite our conclusions in this case,” she wrote,

“we recognize the problems innocent renters face when they are named as defendants to unlawful detainer actions. We note that petitioners and amici could seek a statutory remedy for similarly situated renters.”

Courts and policy makers in other states have already attempted to update their laws and practices to address this modern problem of easy online access to public records. The New York court system now refuses to sell tenant data to screening companies, and in California all eviction records are filed under seal and remain sealed if the tenant prevails. Illinois passed a law protecting tenant’s records in foreclosure related evictions. Oregon enacted a law last year prohibiting the use of dismissed eviction records in making rental decisions. For the past 5 years, advocates in Washington State have worked to protect tenants from the unfair barriers to housing created by expensive, misleading and inaccurate tenant screening reports. Although progress has been made by slowly passing sections of the Fair Tenant Screening Act, the legislature has thus far failed to pass protections for innocent tenants who had their eviction case dismissed.