If, in these days of attacks on the courts, one needs proof that we need more judicial review rather than less, Hamilton County, Ohio could be Exhibit A. Due to the inaction of the local appellate court, a state of unabashed lawlessness reigns in the division of the county's municipal courts that deals with evictions, known in Ohio as actions in forcible entry and detainer (FED).

FED actions in Ohio are governed by Chapter 1923 of the Ohio Revised Code. Anyone who is holding over his or her term or otherwise in breach of the lease (e.g., in default of rent) can be given a three-day notice to leave the premises, which must contain the following language:

"You are being asked to leave the premises. If you do not leave, an eviction action may be initiated against you. If you are in doubt regarding your legal rights and obligations as a tenant, it is recommended that you seek legal assistance."

(R.C. § 1923.04)

Three days after service of the notice, the landlord can file a complaint in forcible entry and detainer, requesting that the court grant a writ of restitution, ordering the tenant to leave the apartment within seven days and to pay any back rent and compensate for any damage done to the premises. The tenant can then file an answer to the complaint, admitting or denying any of the allegations in the complaint, asserting any affirmative defenses (admitting certain allegations, but alleging facts that would excuse or justify the conduct complained of) and asserting any counterclaims she may have against the landlord. If these counterclaims arise out of the lease, they are "compulsory counterclaims", and must be filed in the FED proceeding or be forever waived (Civ. R. 13).

The most common cause for an FED complaint, of course, is nonpayment of rent. In order to protect tenants who have legitimate claims against their landlords — for failure to maintain the premises in a safe, sanitary, and habitable condition and other breaches of the obligations imposed upon landlords by Chapter 5321 of the Revised Code — from losing their homes even if they don't owe any money to the landlord, the Ohio legislature enacted § 1923.061(B), which provides that:

(A) Any defense in an action under this chapter may be asserted at trial.
(B) In an action for possession of residential premises based upon nonpayment of the rent or in an action for rent when the tenant or manufactured home park resident is in possession, the tenant or resident may counterclaim for any amount he may recover under the rental agreement or under Chapter 3733 or 5321 of the Revised Code. In that event, the court from time to time may order the tenant or resident to pay into court all or part of the past due rent and rent becoming due during the pendency of the action. After trial and judgment, the party to whom a net judgment is owed shall be paid first from the money paid into court, and any balance shall be satisfied as any other judgment. If no rent remains due after application of this division, judgment shall be entered for the tenant or resident in the action for possession. If the tenant or resident has paid into court an amount greater than that necessary to satisfy a judgment obtained by the landlord, the balance shall be returned by the court to the tenant or resident.

This statute breaks down essentially into two parts. For one thing, § 1923.061(B) creates a mechanism whereby the court can secure any eventual judgment against the tenant by ordering the tenant to pay any rent that is already past due or that becomes due during the proceedings into an escrow account with the clerk of courts. This portion is discretionary ("The court may order").

The remainder provides for certain rights for the tenant and mandatory duties for the court. Specifically, the tenant may raise any available defence to defeat the landlord's complaint. Examples would include equity (arguing that it is unjust to evict the tenant; generally only accepted in cases where the rent has been paid up prior to the end of the proceedings) and breach of the lease by the landlord significant enough to relieve the tenant of the duty to pay rent either in whole or in part. Similarly, the tenant may counterclaim for any damages owed by the landlord.

If the eviction action was brought on the basis of nonpayment of rent, and the tenant counterclaims, § 1923.061(B) mandatorily ("shall") provides that "If no rent remains due after application of this division, judgment shall be entered for the tenant or resident in the action for possession." Thus, the decision of whether to evict the tenant depends on who is owed a net amount after the value of the allegedly unpaid rent is offset against the value of any counterclaims the tenant has. If the tenant's counterclaims are worth more than the amount owed the landlord, the tenant doesn't have to look for a new place to live.

Hamilton County's Municipal Court, on the other hand, does not appear to have heard of § 1923.061(B). Instead of following the mandatory provisions of that statute, eviction cases follow a completely different procedure. The eviction proceeding is divided up into the "first claim" or "first cause" (the issue of possession) and the "second claim"/"second cause" (back rent, counterclaims, anything monetary). No counterclaims, or defences going to the amount of rent owed (if any at all), may be raised at the hearing on the "first cause". No evidence is generally even produced by the landlord. Instead, the first cause follows a very simple script:

MAGISTRATE: You are the owner of the apartment building at 134 Hell's Pass Road?

LANDLORD: Yes.

MAGISTRATE: The defendant is a tenant in your building?

LANDLORD: Yes.

MAGISTRATE: You served the defendant with a three-day notice to leave the premises on 1 March 2007?

LANDLORD: Yes.

MAGISTRATE: The defendant is behind on his rent and you want him out?

LANDLORD: Yes.

The tenant is then asked if she is behind on her rent. Her answer doesn't really matter, as there is essentially no defence that can be asserted in the first cause. This proceeding takes less than five minutes, and the result is preordained. The hearing is a mere formality. After this pro forma hearing, the magistrate issues the writ of restitution, ordering the local law enforcement to physically evict the tenant if she doesn't leave within seven days, and sets a date for trial on the remaining issues. Of course, the tenant will be at a bit of a disadvantage when it comes to the trial, as the trial is usually scheduled several weeks after the tenant will have been evicted. Since tenants only have seven days to find a new home in a housing market that is at best difficult, the landlord is at a substantial advantage in terms of trial preparation.

It is important to note that there is no legal basis for this manner of proceeding whatsoever. It is a purely judicial custom that has somehow established itself despite the clear requirements of applicable State law. In fact, this custom is so well-established that the Cincinnati Legal Aid Society does not even mention the requirements of § 1923.061(B) in its informational booklet on "Defending your eviction". It simply explains the mechanisms of the first and second cause.

The question of how this practice can be allowed to stand brings us back to where we started: Hamilton County, Ohio as Exhibit A in favour of robust judicial review. In Schwab v. Lattimore, 166 Ohio App.3d 12 (1st App. Dist. Hamilton County), an evicted tenant challenged Hamilton County's judicial custom before the Court of Appeals. And lost. Not because the court did not consider the practice to be a violation of Ohio law, but rather because the court refused to decide the merits at all. According to the two-judge majority of the Court of Appeals, the case was moot because Lattimore, the tenant, had already vacated the premises. Schwab, at par. 11 Because the Court determined that it could not grant any relief to Lattimore, as she had already left, it determined that any opinion issued would be an advisory opinion.

There is, however, an exception to the general rule of mootness. Certain cases are considered to be "capable of repetition yet evading review", injuries that are so short in duration that it would be impossible to obtain relief for them without them becoming moot during the pendency of the proceedings. One prominent example of this is any case concerning pregnancy or abortion; since it will almost certainly take longer than nine months to adjudicate the case, there is a substantial risk that no effective relief would ever be able to be granted and legal and constitutional violations would go unchecked.

Lattimore's counsel in fact argued that this was such a case, since there are only seven days between the grant of the writ of restitution. In Ohio, in order to show that a case is "capable of repetition, yet evading review", it must be shown that "(1) the challenged action is too short in its duration to be fully litigated before its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again." State ex rel. Calvary v. Upper Arlington (2000), 89 Ohio St.3d 229, 231, 729 N.E.2d 1182. In the Court's view, Lattimore failed on the second prong of the test, as there was no evidence that she would be evicted again. In response to Lattimore's argument that the Court should nonetheless decide the case due to the overwhelming public interest in securing the rights of tenants against unduly losing their homes, the Court held that "Lattimore has not convinced us that the narrow issue presented is of such great public interest that we should exceed our entrusted role of deciding justiciable controversies." Schwab, at par. 16.

Of course, this decision is absurd on quite a few levels. For one thing, the burden of proof imposed on the tenant is virtually insurmountable. No one can prove with any degree of certainty that they are likely to be evicted again. As Judge Painter noted in his dissent, "by declaring the issue in this case moot, we are denying relief to any tenant, not just Lattimore, who has a legitimate counterclaim against a landlord that would prevent an eviction." Schwab, par. 20 (PAINTER, J., dissenting). As Judge Painter notes, the Ohio Supreme Court has not always required that parties show that an injury is "capable of repetition" against themselves. In In re Appeal of Huffer (1989), 47 Ohio St.3d 12, 14, 546 N.E.2d 1308, for example, the case was considered "capable of repetition yet evading review" specifically because "students who challenge school board rules generally graduate before the case winds its way through the court system." In other words, even though the individual plaintiff would not be subject to the same injury again, the case was still considered capable of repetition due to the likelihood that it would arise for others.

As it stands, Hamilton County's appeals court is the only Ohio Court of Appeals to reach this particular conclusion. The other courts that have considered the issue of violations of § 1923.061(B) have reached the merits and enforced its requirements. This is of course cold comfort to the thousands of Hamilton County tenants who are subject to eviction without even a minimal hearing on nothing more than the (often unsupported) allegation that they are behind on their rent.

Sometimes, even easy cases make bad law.

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