On a recent Wednesday, Judge Deborah Henderson entered her courthouse with a hell of a to-do list.
The General Sessions Civil Court judge was tasked with more than 280 eviction cases that day — far more than usual but not unheard of in a county that has about 2,200 eviction filings per month. She knew most of the tenants wouldn’t show up, but she’d have to look dozens of her fellow Memphians in the eye before granting their landlord’s request for an eviction.
If she were particularly unlucky, she’d have to watch some of them beg while they explained they didn’t have anywhere else to go.
“It’s just tear-jerking,” she said.
For years, Henderson said she’s been praying for a way to “lessen (her) turmoil” at work. In the last six months, she’s been developing one with Memphis Area Legal Services and Shelby County Commissioner Erika Sugarmon.
Sugarmon is pushing hard for $240,000 in the county budget for a pre-litigation eviction mediation program for disputes involving single-family homes, duplexes and triplexes. With that money, Henderson thinks she and MALS can prevent at least 300 evictions over the next year and take a major step toward establishing a housing court in Shelby County, which could eventually prevent thousands per year.
The cash would go straight to MALS and would be enough to hire three employees. The nonprofit would reach out to frustrated tenants and landlords via flyers and referrals, hoping to get them before they file a code complaint or eviction. MALS would then investigate allegations of code violations and illegal actions and refer the cases to trained mediators who would attempt to find compromises between the landlords and tenants.
However, the county’s budget negotiations are far from finished and it’s unclear whether the program will be able to secure those funds. And a local housing expert is lobbying against it, saying mediation is a bad idea that’s not worth the public dollars.
Hoping for housing court
For almost 17 years, Henderson has been one of six General Sessions Civil Court judges. They’ve seen about 27,000 eviction filings per year since the start of 2016, according to the Legal Services Corporation’s Eviction Tracker.
In most cases, Henderson’s role is cut and dry. The large majority are filed for nonpayment of rent. And if tenants have fallen behind on rent — which they rarely dispute — there are very few reasons Henderson could decide not to sign the eviction, based on Tennessee law.
“The statute is … really, really stringent on tenants, particularly in this (housing shortage),” Henderson said.
Watching so many families lose their homes, Henderson said she’s concluded the county needs a dedicated housing court.
While most General Sessions Civil Court cases are evictions, Henderson said, it is also responsible for numerous other types of cases. And when hearing eviction cases, Henderson and her colleagues can’t consider reasons why a tenant hasn’t paid rent, such as unresolved code violations at the property. In a housing court, the judge could take the property’s condition into account when deciding eviction cases.
“You have mental health courts because you have to look at the whole picture,” Henderson said. “Only if you have a housing court are you going to have the (ability) to look at the entire picture and see what can be done to … reduce the numbers (of evictions).”
However, establishing a housing court would require an act by the Tennessee Legislature, which Henderson knew would be difficult given its pattern of siding with landlords. To help her eventually build her case, she needed some way to gather better data on eviction disputes and how they can be alleviated. An eviction mediation program was her solution since it could also help a few hundred families in the short term.
The General Sessions Civil Court has long referred several hundred non-eviction cases per year — such as money disputes between family members — to accredited mediators supervised by the Community Legal Clinic. Since the parties involved generally don’t have lawyers and often know each other, it tends to work out better for both sides, Henderson said.
This model, Henderson decided, could help solve disputes between landlords and renters over unpaid rent and unresolved maintenance issues while preventing evictions or the involvement of code enforcement.
Henderson’s plan started moving toward reality earlier this year after Sugarmon reached out to her to discuss housing.
Sugarmon, who represents parts of Hickory Hill and southeast Memphis, had recently visited the “Evicted” exhibition at the Benjamin L. Hooks Central Library and had been hearing from constituents concerned about rent hikes and homelessness. She asked Henderson what the county could do to help.
“We have a housing crisis in Memphis, … and it’s just falling on deaf ears at the state level,” Sugarmon said. “People need housing. People are doubling and tripling up (in homes).”
Sugarmon liked the idea of gathering data through a pilot program. In this year’s budget negotiations, she’s made the program’s funding one of her top priorities, while Henderson and MALS CEO Cindy Ettingoff have been working on how it would operate.
Part of the plan, Ettingoff said, is for MALS to use some of the $500,000 of federal Emergency Rental Assistance funds the Tennessee Housing Development Agency recently sent it to help with the program. MALS would use the ERA — a funding source designed to cover low-income tenants’ unpaid rent — to smooth mediations where a relatively small amount of cash would prevent an eviction.
Is mediation the right move?
With the program still under construction, some local housing experts question why it’s worth $240,000.
Jamie Johnson, co-founder of The Greater Memphis Housing Justice Project, criticized Henderson for not consulting renters when designing the program.
“Those experiencing housing insecurity are the experts on the barriers to their housing security,” said Johnson, who brought the “Evicted” exhibit to Memphis. “If we want a solution that is responsive to renters’ barriers, we must listen to the experts on those barriers – the renters.”
Johnson has also been working toward creating a housing court and trying to collect more eviction data. However, she opposes the program because of how it’s been put together and its use of mediation.
“Mediation is not a good conflict resolution tool when there is a significant power imbalance between the parties (and) when unlawfulness (by landlords) is one of the big issues to be resolved,” she said. “Both dynamics are prominent … (in the eviction) cases that we see.”
She’s also worried about eviction disputes occurring behind closed doors, as opposed to in “the light and accountability of the courtroom.”
On March 29, Henderson and Ettingoff presented the program to the Shelby County Board of Commissioners’ Law Enforcement, Corrections and Courts Committee. Having heard from Johnson, Commissioner Britney Thornton pushed back hard on the program, calling its design “arbitrary.” She questioned why Henderson hadn’t consulted tenants and why the program is targeted at small rentals instead of apartment properties.
Henderson told the committee she designed the program based on patterns she’s observed while on the bench. For instance, code enforcement spends more time at apartment complexes than single-family rentals, leaving people who dwell in the latter more in need of help.
Ettingoff endorsed the focus on small properties since they’re more likely to be owned by Memphis-based investors who don’t want to hire a lawyer or put in the effort required to find a new tenant. In other words, they’ll be more likely to give the program a chance.
“(With big investment firms) there’s not as much interest in bargaining because there’s no common connection,” she said. “There’s no tie to the community.”
During the committee meeting, General Sessions Civil Court judges Lynn Cobb and Betty Thomas Moore spoke against the program. Cobb said he was wary of “surrendering part of the authority (he has) been given,” especially since Henderson hadn’t consulted with her peer judges when designing the program. Thomas Moore questioned how the program would get landlords to participate and defended her and her peer judges’ ability to adjudicate evictions well. She did not respond to a request for comment, and Cobb declined to be interviewed.
Thornton, who represents Orange Mound and neighborhoods to its south and east, said she plans to support Sugarmon’s proposal since housing is her top priority as a commissioner. However, she said she hopes the program is restructured to include larger properties and finds more funds, since she questions how much of an impact $240,000 can have on tens of thousands of evictions.
Henderson said she has “no idea” how many people $240,000 can help since she’s never done it before and isn’t following another city’s model. But she’d be happy if it helped as few as 300.
“If we helped 300, we’ve helped 300 more than we did before,” she said. “And we just want to demonstrate that this is a program that can work.”
Jacob Steimer is a corps member with Report for America, a national service program that places journalists in local newsrooms. Email him at Jacob.Steimer@mlk50.com
This story is brought to you by MLK50: Justice Through Journalism, a nonprofit newsroom focused on poverty, power and policy in Memphis. Support independent journalism by making a tax-deductible donation today. MLK50 is also supported by these generous donors.