State of Arkansas v. Artoria Smith

State of Arkansas v. Artoria Smith is a decision of the Pulaski County Circuit Court written by Judge Herbert T. Wright Jr. and filed on January 20, 2015. The decision declared unconstitutional Arkansas’s failure-to-vacate statute—a statute that criminalizes failure to pay rent while remaining on the premises (an act that no other state criminalizes). Three other circuit courts in Arkansas followed suit in declaring the statute unconstitutional.

The parties in Arkansas v. Smith stipulated to several facts. Smith and her landlord, Primo Novero, had a lease agreement in 2014. On July 9, 2014, Novero gave Smith ten days’ notice under Arkansas’s failure-to-vacate statute, claiming she had breached the lease. Under the statute, a tenant who remains on the premises more than ten days, without paying rent, is guilty of a misdemeanor. Smith did not leave, and the Little Rock District Court convicted her on August 6. She appealed to the Pulaski County Circuit Court.

A criminal appeal from an Arkansas district court to a circuit court results in a de novo hearing—that is, a hearing that is conducted a second time. New evidence may be heard, and the circuit court judge is not bound by the district court verdict. Once in circuit court, Smith moved to dismiss, arguing that the failure-to-vacate statute was unconstitutional.

The failure-to-vacate statute is unique to Arkansas; no other state criminalizes what is essentially a breach of contract. The statute was originally enacted in 1901 and amended to make it more onerous on tenants in 2001. In essence, the statute states that when a tenant remains on the premises more than ten days after having been given a written notice by the landlord or the landlord’s agent, the tenant is guilty of a misdemeanor. A tenant so charged who enters a plea of not guilty and who remains on the premises must deposit the rent due into the court’s registry, as well as any rent that accrues during the pendency of the proceedings. There is a “catch-22” nature about the statute, which further states that if a tenant is found guilty, or pleads guilty or nolo contendere (no contest), and has not deposited the alleged rent due (even though tenants pleading guilty or nolo contendere are not required to make a deposit by the statute), the tenant will then be guilty of a Class B misdemeanor, which carries a penalty of up to a $1,000 fine or ninety days in jail. If such a payment has been made to the court and the tenant is found guilty, the payment is turned over to the landlord. If the tenant does make the payment to the court, then the offense is only a general misdemeanor, punishable by a fine set out in the statute of $25 per day.

Smith argued that the statute 1) violated her federal constitutional right to equal protection, 2) violated her right to due process, 3) unconstitutionally had a chilling effect on her right to trial, 4) violated the federal and state prohibition of debtors’ prisons, and 5) constituted cruel and unusual punishment.

The court agreed with Smith. It first ruled that the statute violated Smith’s federal procedural due process rights, determining that requiring a defendant to deposit money with the court before pleading not guilty denied the defendant of property without a hearing. The court stated that “[n]o determination is made that a defendant has committed the act prohibited by the statute before he or she must surrender the funds in question.” It noted that Arkansas, similar to all other states, has an unlawful detainer action, an effective civil remedy under which a landlord can sue to evict a tenant. The court further noted that the failure-to-vacate statute does not give a judge the power to evict a defendant, stating that the statute seemed “little more than a way for a landlord to use the threat of criminal charges to leverage a tenant out of the property without availing himself of the costlier and more time-consuming civil process.” The court also ruled that the requirement that the tenant pay before pleading not guilty impermissibly had a chilling effect on the tenant’s right to a jury trial under the Sixth Amendment (jury trials are not available in district court but would be on appeal to circuit court).

Smith argued that equal protection was violated in that the statute discriminated between the class of defendants who could afford to deposit the funds and those who could not. The court agreed with the equal protection argument insofar as the statute impinged upon the fundamental right to a jury trial. Any statute that does so must survive the strict scrutiny of a court. The court noted that, on its face, the statute does not protect the state’s stated purpose (the right of the landlord to acquire and possess and protect property), since it did not authorize judges to remove tenants from property, and thus was not narrowly tailored to achieve the state’s purpose, as required by the strict scrutiny test.

Arkansas’s constitution (Article II, section 16) prohibits the imprisonment for debt in any civil action unless fraud is present. This is, in effect, a prohibition against debtors’ prisons. The court noted a previous case, State v. Riggs (1991), which held unconstitutional a statute making it a crime for a contractor or subcontractor to knowingly refuse to pay for materials. The Riggs court reasoned that the statute did not require fraudulent intent, and there was no finding of fraud on the part of the contractor. Similarly, this court found that, in the case of Smith, “the statute commandeers the criminal court’s power to enforce that debt without a finding of fraud in the traditional sense.” Thus, the court ruled that the failure-to-vacate statute violated Arkansas’s constitution.

The Eighth Amendment of the U.S. Constitution prohibits cruel and unusual punishment. The Pulaski County Circuit Court noted that 1) this statute is unique to Arkansas; 2) some prosecutors in Arkansas do not bring charges under the statute, and some courts refuse to hear them; and 3) the Department of Housing and Urban Development does not permit the failure to vacate statute to be used by either public housing authorities or Section 8 landlords. The court called Arkansas an “outlier” and concluded that, even if the statute did not impose a cruel punishment, the punishment was unusual and violated the Eighth Amendment.

Since the Pulaski County Circuit Court’s declaration of the failure-to-vacate law to be unconstitutional both on its face and as applied, circuit courts in Craighead, Woodruff, and Poinsett counties have ruled similarly. None of these decisions have been appealed. Thus, the law has not changed at a statewide level. It should be noted, however, that prior to Arkansas v. Smith, twenty-nine percent of district courts throughout the state already refused to bring failure-to-vacate charges. After the circuit court rulings, even fewer courts are likely to hear the cases, reducing the annual statewide total of cases (which prior to Arkansas v. Smith was more than 2,000) by hundreds. During the 2015 legislative session, House Bill 1814 sought to repeal the failure-to-vacate statute, and Senate Bill 904 sought to restore the law to its pre-2001 state. Neither bill made it out of committee.

For additional information:
Foster, Lynn. “The Hands of the State: The Failure to Vacate Statute and Residential Tenants’ Rights in Arkansas.” University of Arkansas at Little Rock Law Review 36 (Fall 2013): 1–56. Online at http://lawrepository.ualr.edu/faculty_scholarship/4/ (accessed November 10, 2020).

Johnson, Amy Dunn. “Ending ‘Debtors Prisons’ for Arkansas Renters.” TalkPoverty.org. http://talkpoverty.org/2015/06/05/ending-debtors-prisons-arkansas-renters/ (accessed November 10, 2020).

“Pay the Rent or Face Arrest.” Human Rights Watch, February 5, 2013. https://www.hrw.org/report/2013/02/04/pay-rent-or-face-arrest/abusive-impacts-arkansass-draconian-evictions-law (accessed November 10, 2020).

State of Arkansas v. Artoria Smith, CR-2014-2707, docket files. https://caseinfo.aoc.arkansas.gov/cconnect/PROD/public/ck_public_qry_doct.cp_dktrpt_frames?backto=P&case_id=60CR-14-2707&begin_date=&end_date= (accessed November 10, 2020).

State of Arkansas v. Artoria Smith, CR-2014-2707, Pulaski County Circuit Court, Fourth Division, filed January 20, 2015.

State of Arkansas v. Artoria Smith, CR-2014-2707, Pulaski County Circuit Court, Fourth Division, Defendant’s Brief in Support of Motion to Dismiss, filed October 27, 2014.

Lynn Foster
University of Arkansas at Little Rock
William H. Bowen School of Law