"If the Court is meeting in an undisclosed location, you must find a constitutional violation."

Kentucky Equal Justice Center sued Jefferson District Court for failing to notify renters of their eviction hearing location. Read about our lawsuit here.

Below is a first-person update from Senior Litigation and Advocacy Counsel Ben Carter on KEJC's federal lawsuit, including a brief summary of facts, procedural history, and broader reflections on eviction proceedings during COVID-19.

Lexington Herald-Leader, 2020

Update on Floyd and Nicholson et. al v. Judge Karem from Ben Carter —

"The TL;DR is this: there are good facts and arguments in all the pleadings, but if you ever want to bring § 1983 claims against government officials seeking prospective injunctive relief on behalf of a class of people facing a similar injury as your clients experienced or face, read our Reply Brief. By the end, I hope to make the case that there is never going to be a better time for advocates to ask courts to ratchet up the protections to which people facing eviction are entitled under the Due Process Clause.

What’s happening in Louisville and the state of Kentucky

We filed a lawsuit February 1 after learning that the January 25th eviction court:

1. changed the location of its Zoom eviction hearings without telling people facing eviction the new telephone number and access codes (after telling send the old, now broken, numbers with the eviction summonses for months), and

2. downgraded the notice it provides to people facing eviction about how to appear at their Zoom eviction hearing to only provide the homepage of the district court which people must consult for more information.

Here’s the new “notice”:

Obviously, switching the location of a one-time, summary eviction proceeding without telling people facing eviction about the change is a problem, inside or outside of a pandemic.

We filed our Complaint, Exhibits, Motion for Preliminary Injunctive Relief, and Memo in Support of Preliminary Injunctive Relief on February 1. Because Jefferson District Court hears 300+ eviction cases a week, we asked for a hearing within 48 hours. Here’s a news article from our local NPR about the suit.

There are obviously more facts than I can provide in this summary, but when the Jefferson District Court changed the Zoom eviction hearing location on January 25, no one knew about the change: not Louisville Metro’s rental assistance program, not community court watchers, not legal aid attorneys, not, apparently, landlords or landlords’ attorneys.

Where possible, the Court called landlords and landlords attorneys when they did not appear in the new location. The Court did not, as far as I know, call people facing eviction.

On January 26, we learned that the switch in Zoom eviction hearing locations was the result of the Jefferson District Court’s decision to “upgrade” its Zoom account. I do not have details (yet) on the timeline/tick-tock of that decision, but the Jefferson District Court knew the re-location would create some “potential confusion."

The federal court scheduled a Status Conference on January 27 at 2:00 p.m. The Jefferson District Court (represented by our AG’s office) filed its Response to the Motion for Preliminary Injunctive Relief about an hour before the Status Conference. At the Status Conference, Judge Hale expressed reservations about the federal court’s authority to “interfere” with state eviction proceedings, saying we had a “substantial hurdle” to overcome. Judge Hale provided KEJC until February 8 to file a Reply brief. (I, an idiot, speculated at the Status Conference that I could get a Reply filed by February 5, which—in retrospect—was laughably ambitious.)

In the meantime, I learned from folks around the state that the district courts in their counties were providing wildly disparate but uniformly unconstitutional (IMHO) notices to people facing eviction in other counties. Some counties provided no notice that eviction hearings were held via Zoom (providing only the physical courtroom location), other counties provided the phone number of the Court Clerk to call for information about Zoom eviction hearings. Other counties, apparently, never even attempted to comply with the Kentucky Supreme Court's Order mandating that these hearings be held remotely. So, I wrote two letters last week:

• first to Fayette County court officials and then,

• on February 5, to the Chief Justice and the Director of the Administrative Office of the Courts expressing urgent concerns about the notice provided and process given to people facing eviction.

I have received these responses so far:

• Fayette County

• Administrative Office of the Courts

Kentucky Equal Justice Center's Reply Brief

On Monday February 8, we filed our Reply Brief. I hope I can encourage you to read the whole brief by sharing with you this preposterous snippet near the end of the brief:

The Defendant’s Response Brief defended the notice and process provided by the Jefferson District Court, but it primarily focused on the Anti-Injunction Act (AIA) and attacked our clients’ standing to bring a lawsuit on behalf of the hundreds of people facing eviction each week that the Jefferson District Court expects to appear in a new, unnoticed, undisclosed location.

[Johnnie Cochrane voice] “If Court is meeting in an undisclosed location, you must find a constitutional violation.”

The Jefferson District Court’s argument is, essentially, that Ms. Floyd and Ms. Nicholson lack standing because they have not yet been injured and who never (or no longer, I guess as a result of their own post-judgment efforts to hire attorneys and fix the Court’s errors?) faced an imminent injury.

In our Reply Brief, we first addressed the AIA argument (U.S. Supreme Court precedent recognizes § 1983 as a statutory exception to the 1792 law).

With respect to standing, we rejected the Defendant’s position that our clients had not been injured yet and made the case that under the Kentucky Supreme Court’s new, COVID-era eviction rules, our clients lost an automatic, two-week stay available to any person who shows up in court for their eviction hearing when the Jefferson District Court’s decisions and processes made it impossible for them to appear for their one-time, summary Zoom eviction hearing. We showed that this two-week stay was the kind of interest protected by the Due Process Clause.

Then, we cited a line of cases (County of Riverside/Dixon) that showed that people with constitutional injuries in the past can (of course!) seek prospective injunctive relief to protect others like them.

Then, we addressed the claim that our clients did not face an “imminent” deprivation of property (rented homes) by arguing that a) their deprivation was still imminent and b) even if it wasn’t (because of their own efforts), because they did face an imminent risk of deprivation, they have standing to protect others prospectively:

In the same way that people with “completed” constitutional injuries can still get prospective injunctive relief under County of Riverside/Dixon, Plaintiffs whose injury was imminent but no longer is (by their own additional efforts) can still get prospective injunctive relief for the class of people still facing imminent injury at the hands of Defendant. Just because Plaintiffs unknotted the rope binding them to the conveyor belt in time to escape the buzzsaw does not mean they cannot ask this Court to turn off the buzzsaw for those still tied to the belt.

In many ways, our Reply Brief was, in practice, a Response Brief to Defendant’s standing arguments first raised in its Response. On February 9, the federal court, sua sponte and appropriately, gave the Defendant until next February 15 to file a surreply to our Reply Brief.

Also February 9, we filed our Motion for Class Certification (very basic) and Memo in Support (substantive).

I am proud of the lawsuit we’ve filed, and proud of the Reply Brief we filed. I hope we can get relief for and accurate notices to people in Jefferson County soon.

The bigger picture for eviction processes during COVID-19

Working on this emergency created by the Jefferson District Court’s decisions to

1. move Zoom eviction hearings to an undisclosed location and

2. downgrade the notice it provides people facing eviction

forced me to collect my thoughts on something that’s been sort of a low-level outrage in my mind since our courts in Kentucky started having eviction hearings in a pandemic again last summer.

Briefly and perhaps obviously to many of you: eviction processes that were cruel and outdated but probably constitutional in February of 2020 may be completely unconstitutional now.

Even if your eviction courts don’t:

• move hearings to an undisclosed Zoom location, or

• provide only a website that people must check to learn how to actually appear for their highest-of-stakes eviction hearing, or

• claim people have the option to appear in person but don’t tell them they have that option, or

• give people a physical courtroom as the only “location” of the hearing when, in fact, they have the undisclosed option to appear by Zoom.

In other words, even if your Courts are not moving backwards in terms of notice and process, but instead are simply following the timelines allowed by state law, I am starting to think that (depending on the timelines, of course), adhering to the status quo ante pandemic may in some cases violate people’s due process rights.

Here’s what I mean (and what we said in our Reply Brief):

The question of “what process is due” is “flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972).”

And, there is a direct relationship between the process required by the Constitution and the interest at stake in a particular proceeding:

“Identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews v. Eldridge, 424 U.S. 319, 335 (1976) citing Goldberg v. Kelly, 397 U.S. 254 at 263–271 (1970). Any procedures the government uses “must be “tailored, in light of the decision to be made, to the ‘capacities and circumstances of those who are to be heard.’” Mathews at 424 U.S. 319, 349 citing Goldberg at 268–269.

The basic gist here is that we know our outdated eviction processes were already — pre-pandemic — ill-fit to the ever-increasing stakes of an eviction. Kentucky state law still allows a lightning-fast eviction process (at least three days’ notice before a summary eviction hearing, one week to leave after a judgment of eviction is entered).

I want people to know a federal lawsuit is not the first way we have encouraged Kentucky courts to improve their notices. In my letter to the Kentucky Supreme Court last week, I reminded them that I had prepared a cover sheet for all 120 counties back in May. As we said in our Memo for Class Certification:

Since the Jefferson County District Court started Zoom Eviction Hearings last summer and until recent weeks, this is the information the Jefferson District Court has provided with the Notice of Eviction Hearing (Summons). It was fine. Not great, but good and certainly better than the practice in other District Courts in Kentucky. Nobody got sued.

In the early 1980s, the U.S. Supreme Court measured Kentucky’s law of requiring only notice by posting the Eviction Summons on the rented property against the requirements of the Due Process Clause and found that it came up short. In Greene v. Lindsey, the U.S. Supreme Court found that the Due Process Clause requires service by U.S. mail in forcible detainer proceedings, as well.

From our Reply Brief:

In Greene v. Lindsey, the U.S. Supreme Court reviewed the requirements for notice within the context of forcible detainer proceedings and held that while personal service is not required in every proceeding,

the Due Process Clause does prescribe a constitutional minimum: “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Greene v. Lindsey, 456 U.S. 444, 449–50 (1982) quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).

This Court must judge the sufficiency of the Jefferson District Court’s decisions, processes, and notices within the context of “all the circumstances” surrounding the Court’s decision to “upgrade” its Zoom account.

Then, we (try to) articulate “all the circumstances” to consider right now — locally, nationally, epidemiologically, etc. etc.

But, bigger picture, Greene v. Lindsey stands for the proposition that long-standing state forcible detainer laws may violate Due Process as/if the interest in the subject property (a rented home) increases.

It’s hard to imagine a moment in which our clients’ interests will be higher in their ability to remain in their homes. In other words, hard to imagine a time when the due process protections need to be more robust than they need to be right now.

If eviction processes in your state or community have not responded to the enormous stakes — for homerenters, for their families, for schoolchildren, for public health — of this moment, consider whether those processes are so lacking when compared to the enormous stakes of an eviction action that those processes now violate the “minimum” standards guaranteed people who rent their homes by the Due Process Clause of the U.S. Constitution."