Proposal aimed at helping tenants slowed by filibuster

A proposal aimed at helping Nebraskans who have faced eviction from their homes was slowed by a filibuster Wednesday in the Legislature.

The so-called “clean slate” proposal by Sen. George Dungan would seal the records of eviction proceedings by landlords against tenants, if those proceedings were later dismissed. Sen. Carolyn Bosn described the kind of situation the proposal is designed to address.

“If I'm a tenant, and I don't file my rent, and it's due on March 1, if my landlord does an automatic filing of my failure to pay and it gets automatically filed and my check comes in on March 2, do you think that landlord really wants to evict me? Are those the kinds of people any of us want to evict? The answer's ‘no,’” Bosn said.

Other supporters said sealing eviction proceeding records, if the person was not evicted, would help avoid them being rejected by future landlords, and help prevent homelessness.

Sen. Brad von Gillern opposed the proposal, saying landlords need all the information they can get about potential tenants. Von Gillern described his experience as a landlord.

“We experienced slow pay. We experienced no pay. We had a renter that had a pit bull that left the unit for the weekend and just tipped over an 80-pound bag of dog chow and left… We had a tenant that paid cash rent every month and came to us to drop it off, which we thought was a dream deal ‘til we realized that they were cooking meth in the house,” von Gillern said.

Sen. Wendy DeBoer said the bill is aimed at protecting people who have had a one-time occurrence, like a car accident, that caused them to fall a couple weeks behind on their rent.

“I think you can all see that these are real circumstances that people find themselves in. And when that happens, are you now just going to be lumped with someone who got evicted, and it's a whole bad thing? The cooking meth person is very different than the ‘I was two weeks late’ person, ‘and I paid it all’” DeBoer said.

And Sen. Lou Ann Linehan said the pendulum of legal protection had swung too far against tenants.

“The results are swinging way too heavy to the side of the landlord. This results in moms with little kids getting evicted in December, January, February. And until we come up with some program when that doesn't happen, we need to pass this bill,” Linehan said.

When debate began Wednesday, the proposal also envisioned restoring the right of tenants to have a jury trial in eviction cases.

Current Nebraska law requires those cases be tried before a judge, not a jury.

But in an opinion issued last year, the Nebraska Supreme Court said that could violate the state constitution. So Dungan introduced a proposal that would restore the right to a jury trial. Supporting that part of the bill, DeBoer predicted trouble if and when the Supreme Court rules current Nebraska law unconstitutional.

“In the situation where there's suddenly found to be a constitutional right to a jury trial, and there are no protections, then what happens? First of all our courts are in chaos, because having that many jury trials would be problematic,” she said.

Sen. Julie Slama led a filibuster against the bill because of the clean slate provisions, which she called an attack on property rights. Slama also downplayed DeBoer’s scenario of legal chaos.

“It's kind of absurd to claim the Nebraska Supreme Court's just going to come in with an Uzi and claim that the entire landlord tenant act is unconstitutional. When it comes to this issue on right of a jury trial, I’ve reviewed the cases, I’ve reviewed reviewed their opinions. Like they're not going to come in and rule this en masse unconstitutional,” Slama said.

Bosn said jury trials in eviction cases were an option until the 1990s, but happened very infrequently. But she argued for restoring the right:

“If you have the constitutional right to a jury trial, whether you like it or not, you have the constitutional right to the jury trial. If all of a sudden I said ‘I don't think people who have committed first degree murder should have the right to a jury trial,’ that doesn't mean we don't have the right. It is expensive to have those jury trials, but it is the constitutional right that we have,” she said.

Nevertheless, Dungan said there was not enough support to include the jury trial requirements, and got senators to adopt an amendment taking out that part of the bill. Sen. Justin Wayne predicted senators would regret that decision later this year.

“Mark my word: we will be here in a special session because there's going to be 1,000 families and 1,000 property owners who have no solution to what's going on, because the Supreme Court is going to rule this provision unconstitutional and we decided not to step up today,” Wayne said.

Nevertheless, senators voted 32-11 for Dungan’s amendment taking the jury trial requirement out of the bill. That’s one vote short of the 33 votes that would be required to end the filibuster against the clean slate portion of the bill, although six senators passed or were absent for the vote.

Whether or not one of them will supply the vote needed for the bill to advance should become evident when debate reaches the eight hours needed before a cloture vote can be tried Thursday.