Eviction Legal Defense Fund Could Land on Denver Ballot in November

The end of a federal eviction moratorium could land more people on the streets.
The end of a federal eviction moratorium could land more people on the streets. Evan Semón
The No Eviction Without Representation campaign is pushing to land an eviction legal defense fund initiative on the November 2021 ballot for Denver.

"It’s really a humanitarian issue. It is hugely disruptive to a person’s life to be evicted. We’re seeing higher rates of joblessness, of hunger. It’s a lot harder to access resources when you’ve been evicted. On top of that, you’ve got a really damaging effect on your credit score and lower likelihood of being able to rent again," says Ruby Leigh Pierce, an organizer with the Denver chapter of the Democratic Socialists of America and a campaign proponent.

Leigh Pierce and other Denver DSA organizers have already sent the proposed initiative to the Denver City Attorney's Office for review. If eventually approved by voters, the initiative would require landlords to pay what would start out as a $75 tax on each individual residential rental unit; proposal proponents believe this would generate around $12 million in the first year, enough to pay for legal representation for anyone facing eviction in Denver. The tax rate would then increase by small amounts each year in relation to Colorado's consumer price index. The $75 tax concept was modeled after the No Eviction Without Representation initiative passed by Boulder voters in November 2020.

"Part of the way it’s funded is important to us. There’s a very fundamental power imbalance between the landlords and tenants right now. More than just helping people, we want to shift that power imbalance toward tenants," explains Abby Spudich, another Denver DSA organizer pushing the initiative.

A study of Denver eviction cases from 2001 to 2017 conducted by the Colorado Center on Law and Policy and the Colorado Coalition for the Homeless showed that landlords lawyered up in 89 percent of the cases, while tenants had legal counsel in less than 1 percent.

"It’s an incredibly fast process. The eviction is filed and the answer is due one week later. The whole process can happen in less than a month, which makes it difficult for tenants to understand their cases, avail themselves of resources, and seek representation where they qualify," says Megan O'Byrne, an attorney with Colorado Legal Services, which provides pro bono, City of Denver-funded legal assistance to indigent individuals and seniors in Denver who need to file an answer to an eviction complaint.

Currently, some tenants simply don't show up to eviction proceedings, and that frequently results in an automatic eviction. "A lot of tenants feel like they have no choice but to give up and relinquish housing," explains Jack Regenbogen, a senior attorney at the Colorado Center on Law and Policy.

But with universal tenant representation in Denver, O'Byrne adds, "there's a good chance" that more tenants would show up.

The positive effects of universal representation go beyond getting more people to want to fight for a favorable outcome in court, O'Byrne notes: "The more resources we have, the more cases we can take for full representation, which is assisting with steps A through Z."

In its first year, the Right to Counsel program in New York City, now in a pilot phase before citywide implementation in 2022, led to evictions declining five times faster in areas that had the program compared to areas without it.

At a Denver City Council committee meeting earlier this year, Councilwoman Candi CdeBaca floated the idea of an ordinance creating a universal right to legal defense in Denver. Even as the No Eviction Without Representation campaign gets underway, CdeBaca plans to continue pursuing an ordinance.

"This is about leveling the playing field," she says. "Courts have a duty to not advantage one party over another, but the practical reality of our current eviction process is that it often advantages landlords over tenants. Making eviction defense a right and backing that right up with a sustainable funding stream will correct the imbalances of knowledge and power that we see play out in eviction court in our city. Housing is like health care; it’s among our most basic needs. Eviction defense increases the likelihood that a tenant will stay housed, a landlord will get paid, and the city reduces downstream costs of homelessness to residents and service providers."

In a typical year, Denver landlords initiate between 8,000 and 10,000 eviction cases in Denver County Court. Owing to eviction moratoriums at both the state and federal level, there were only 3,912 filings in 2020.

In the first two months of 2021, however, landlords initiated 900 eviction cases in Denver. And since the statewide eviction moratorium enacted by Governor Jared Polis expired at the end of 2020, the only moratorium in place right now is a federal one instituted by the Centers for Disease Control and Prevention.

That moratorium, set to expire at the end of March unless renewed by the federal government, prevents eviction of tenants who can exhibit that they've experienced a COVID-related financial hardship, are trying to but cannot afford to pay rent, and have exhausted other options for obtaining relief.

"That’s been helpful, but it also has a lot of gaps and a lot of loopholes," Regenbogen says, noting that the moratorium only applies to non-payment cases, and not instances where, for example, a tenant violates a minor aspect of a lease. "It’s not that difficult for a landlord to contrive a reason for evicting somebody that isn’t addressed by the federal moratorium."

If the federal moratorium expires, O'Byrne warns, "There will be a very fast number of not just eviction cases being filed, but actual eviction cases happening very shortly after."

Colorado laws, including one allowing for landlords to provide just ten days' notice before starting eviction proceedings, are stacked against tenants, both lawyers agree. "Ultimately, we need laws that make the process more friendly to tenants," O'Byrne says.

A handful of Democratic lawmakers in the Colorado Legislature are pushing bills that would increase protections for renters, including extending the notice period before starting an eviction proceeding to fourteen days.

If the No Eviction Without Representation campaign gets the green light from both the city attorney's office and the Denver Elections Division, it will have until early July to gather 9,184 valid signatures to land on the November Denver ballot. But along the way, it could pick up opposition as well as supporters.

"The best use of money to help people maintain housing is emergency rental assistance," says Andrew Hamrick, general counsel and senior vice president of government affairs for the Apartment Association of Metro Denver and the Colorado Apartment Association. "Paying the lawyers for one group of Denver citizens to sue another group of Denver citizens is not the answer. This initiative would add approximately $12 million to the cost of Denver rental housing. That cost will be paid by residents who already are working hard to get by. This initiative helps no one except the lawyers who would be paid more money than their services are worth. The initiative is particularly poorly timed, as eviction filings are at an all-time low (about 30 percent of normal since the beginning of COVID closures) and these advocacy groups are already receiving massive new funding increases through federal and state monies intended for rental assistance. Denver’s housing providers need help to continue to keep people housed, not lawyers to sue them."

The campaign's organizers say they're up for the challenge, and are fighting on behalf of a broad constituency. "DSA members are very active, but this isn’t just a DSA initiative," says Spudich. "This is an initiative for tenants run by tenants, and that describes a huge amount of Denver."

Update: This story was updated to add the quote from Drew Hamrick, correct an attribution and also clarify Candi CdeBaca's position .
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Conor McCormick-Cavanagh is a staff writer at Westword, where he covers a range of beats, including local politics, immigration and homelessness. He previously worked as a journalist in Tunisia and loves to talk New York sports.