All about Washington State's groundbreaking eviction right to counsel
While a state may have many statutes, court decisions, or court rules governing appointment of counsel for a particular subject area, a "Key Development" is a statute/decision/rule that prevails over the others (example: a state high court decision finding a categorical right to counsel in guardianships cases takes precedence over a statute saying appointment in guardianship cases is discretionary).
03/12/2023, Legislation, Housing - Evictions
UPDATE: court reverses eviction where tenant denied right to counsel
In Payton v. Nelson, the Washington Court of Appeals considered a scenario where an eligible tenant was denied an appointed attorney in their eviction case. The trial court had held the right to counsel law specifies the right is "subject to the availability of amounts appropriated for this purpose" and that the court believed the funds were not yet available, so it denied that the right to counsel had been violated and then ordered the eviction of the pro se tenant.
The Court of Appeals noted that the right to counsel law, which specifies that the court appoint counsel for eligible tenants, had been made effective immediately upon enactment and that funding had been appropriated; the delay in attorneys being available was actually due to necessary contracts not yet being signed between the state and the legal services provider. The Court of Appeals also noted that the State Office of Civil Legal Aid took the position that evictions are not permitted to proceed until the tenant is provided an attorney. The Court of Appeals conceded, "It was unusual, to be sure, to mandate court-appointed counsel in cases that landlords could bringbefore procedures were in place to make the appointment. But the legislature characterized the problem being addressed as a public health emergency." It then concluded:
Given the context and all the legislature had to say in related provisions, it is unsurprising that unlawful detainer proceedings that had already been delayed would be delayed somewhat longer if OCLA did not have contracts in place in a given county. Critically, given plain language that the right to counsel and duty to appoint counsel existed immediately, the only reasonable reading of RCW 59.18.640(1)is that if indigent tenants did not have appointed counsel, an eviction proceeding would have to be delayed.
UPDATE: first annual RTC report released
The Office of Civil Legal Aid released the first annual report to the Washington State Legislature documenting implementation of the State's right to counsel for indigent tenants in eviction cases. Here are some highlighted findings:
- "Since commencing operations in October 2021, RTC attorneys have been appointed for all tenants screened and found eligible for appointed counsel in every case in every judicial district in the state." (An important caveat made in the report is that not every tenant is yet aware of the right to counsel).
- Court-appointed attorneys represented close to 3000 tenants between January 1 and May 30, 2022.
- Tenants remained in their homes in more than 50% of closed cases where the result is known. In the other cases where a different outcome is known tenant attorneys have helped expand tenant time to move, obtained orders of dissmissal and limited dissemination, provided relief from future back-due rent claims, and helped achieve "other outcomes that significantly benefit the tenant and reduce the long-term negative impact on their ability to find rental housing."
- Court processes are changing, as "...courts are routinely informing tenants of their rights to appointed counsel, providing them time to be screened for eligibility, appointing attorneys for indigent tenants, and respecting the new and enhanced role of tenant defendants’ court-appointed attorneys."
UPDATE: statewide right to counsel goes live!
The Seattle Times and KGW News recently reported on the rollout of the Washington State eviction right to counsel program.
UPDATE: statewide implementation plans released
Washington State’s Office of Civil Legal Aid has publicly released the implementation plan for the newly-enacted statewide right to counsel for tenants facing eviction. Other reports related to implementation can be found on the OCLA website.
In April 2021, Washington State Governor Jay Inslee signed SB 5160, which makes the state the first to guarantee counsel for indigent tenants in eviction cases. It specifies that "Subject to the availability of amounts appropriated for this specific purpose, the court must appoint an attorney for an indigent tenant in an unlawful detainer proceeding under this chapter and chapters 59.12 and 59.20 RCW." The bill has a flexible definition of "indigent" and routes the funds through the Office of Civil Legal Aid.
The passage of the bill was covered by the Seattle Times, Oregon Public Broadcasting, The Olympian, Business Insider, and ABA Journal.
If "yes", the established right to counsel or discretionary appointment of counsel is limited in some way, including any of: the only authority is a lower/intermediate court decision or a city council, not a high court or state legislature; there has been a subsequent case that has cast doubt; a statute is ambiguous; or the right or discretionary appointment is not for all types of individuals or proceedings within that category.
Appointment of Counsel: categorical Qualified: no
The NCCRC provided support and input on the bill.