Detroiters facing eviction could get lawyers in court under a new proposal providing a “right to counsel,” lauded by some housing advocates as a game changer for low income residents.
But city officials said the ordinance, as it stands, would be financially detrimental for Detroit and raised questions about its open-ended nature.
City Council President Mary Sheffield’s proposed ordinance would provide legal counsel for income-eligible occupants in residential eviction cases and other proceedings that threaten housing — like mortgage foreclosures or land contract forfeitures — in 36th District Court.
“This issue impacts all of us. I think it’s a solution to stabilizing our neighborhoods and it also has an economic return to the City of Detroit,” Sheffield said during a planning and economic development committee meeting Thursday, asking that the ordinance be moved out of session for a public hearing to discuss issues around funding.
The proposal drew sharp criticism from city officials.
“The way that this is presented is very dangerous for the city,” said Chuck Raimi, interim corporation counsel, before the committee Thursday.
Raimi said the ordinance provides an open ended right to a lawyer and doesn’t address funding, adding that it is “fundamentally flawed” and should not be passed and rushed.
Jay Rising, the city’s chief financial officer, told the Free Press on Thursday his concern is not with the purpose of the ordinance but rather that it puts an obligation on the city without any budget constraints.
“We can’t create rights, the creation of rights creates obligations,” he said. He said there’s no limitations on funding or an identified funding source.
With unlimited obligations, the city would be unable to certify its four-year budget as balanced and that could trigger the return of state financial oversight under the Financial Review Commission, according to the city.
The city can’t use general funding, however federal and philanthropic can be used, Rising said.
“It’s not a question about the policy. I think there’s a shared objective here. It’s just that we have to write the policy in a way that lets you continue to operate your city financially,” he said.
Tonya Myers Phillips, project leader for the Detroit Right to Counsel — a group seeking to guarantee legal representation for low-income renters facing eviction — argued Thursday during committee that the ordinance was legally sound.
“We need to bring our residents and our city one step closer to having housing security,” Phillips said.
Last week, Phillips told the Free Press that the ordinance, if passed, would be a “game changer.”
“A right to counsel is, simply put, just the right to have legal representation in a legal proceeding,” Phillips said, using the example of how those accused of a crime are guaranteed a lawyer if they can’t afford one. There isn’t an equivalent on the civil side and that needs to change for those facing eviction in Detroit, she said.
Evictions are an ongoing concern in Detroit, heightened by the COVID-19 pandemic.
In 2019, more than 10,000 writs of eviction were signed in the 36th District Court and in 2020, that number dropped to 2,428, the court said last summer. A writ, or order of eviction, is signed by a judge and allows a court officer to remove a tenant and their personal belongings from a rental property.
A study from the University of Michigan found that eviction filings in the pandemic — between April and December 2020 — fell 65%, compared with the same time in 2019. The decrease was because of safety nets such as eviction moratoriums, legal aid and rent assistance.
But housing advocates worry that evictions may be on the rise again as federal emergency rent aid runs out.
Advocates want Detroit to join other cities across the nation including Toledo, and Philadelphia in providing legal counsel for low-income tenants. Nationally, 90% of landlords have attorneys in court, whereas 90% of tenants do not, sociologist Matthew Desmond noted in a 2015 policy brief.
“If you don’t have stable housing, everything else is at risk,” Phillips said.
The ordinance notes that an “Office of Eviction Defense” under the city’s Housing and Revitalization Department would provide full legal representation to Detroiters making 200% of the federal poverty guidelines, which for one person is $27,180. Lawyers would be from nonprofit organizations and a specific funding source is not included in the ordinance as it stands now.
“We can argue back and forth and have disagreements with each other, but I think this is something that is needed here for our residents … we want to do it constitutionally,” said Council Member Fred Durhal, representing District 7.
Raimi said the ordinance should provide “access” to counsel rather than create a “right,” that general funds cannot be used, that individuals have a “viable defense” and that there is an appropriations process.
In terms of viability, Sheffield pointed out that attorneys would make decisions prior to providing counsel and added that she was disappointed in Raimi’s comments.
“You should be horrified by the amount of individuals facing eviction in this city and the deplorable conditions that people are living in,” she said.
City Council President Pro Tem James Tate ultimately told Raimi to “please leave the table” and later said any issues, including funding, could be addressed moving forward.
The proposal was moved to city council’s formal session for introduction and the setting of a public hearing.
People need to be given a fair opportunity to fulfill their obligations. That does not mean they should be void of contributing to their financial responsibility.