- AnneMarie Rogers
It was close to 11 AM on Tuesday, January 5, when Cook County circuit court Judge Martin Moltz said in open court that he thought Governor J.B. Pritzker’s eviction moratorium is “utter idiocy.” According to an attorney representing a property owner, the eviction case before Moltz, which had been filed in October, was a “post-foreclosure matter.” The former owners who had lost their house had allegedly illegally reentered it. The new owners, Kirkland Group—a Tennessee-based real estate investment firm—were trying to get an eviction order from the judge, but since this was a residential case, Moltz was bound by the moratorium.
“I understand they’re squatters and they’re owed no duty of any kind,” Moltz told Kirkland’s attorney Aaron Nevel in a kind and sympathetic tone. He apologized that he couldn’t order the eviction. “In a case with squatters we should be able to get them out right away.” Nevel was perplexed that the people couldn’t be put out simply for the crime of breaking and entering. However, he had no evidence that they were engaged in any illegal or dangerous activity on the premises—something he’d need to prove for an emergency exception to the moratorium.
To a tenant or anyone advocating for tenants in eviction court, these kinds of statements by a judge may sound biased. Especially if a tenant is accused of being a squatter. Moltz hadn’t asked Nevel to provide any proof that his claims were true. In addition to offering his sympathies, Moltz also warmly told Nevel to pass on a greeting to his father, another local attorney. If a litigant wanted their case transferred to a different judge because she felt she couldn’t get a fair hearing from Moltz, or if she wanted to appeal his decision in her case, it would be nearly impossible to do so because none of what happened in the courtroom that day had been recorded.
As the Reader has reported in the past, eviction court outcomes usually favor landlords: more often than not when a case is filed it ends with a judge’s order for the tenants to clear out. Tenants’ odds of getting cases dismissed are further undermined by the fact that 80 percent of them never have a lawyer (compared to 80 percent of landlords who do). Though litigants can file appeals, without a transcript of what happened their only option to substantiate their arguments would be with a “bystander affidavit,” a statement given by someone who happened to be in court that day and overheard the proceedings. Such affidavits are difficult to obtain, and unlike actual transcripts their accuracy can be challenged.
The fight to put eviction court on the record stretches back to more than five years ago, when a coalition of legal aid organizations, tenant advocacy groups, and court watchdogs led by the Chicago Appleseed Center for Fair Courts mounted a campaign to get the state supreme court to fund installation of recording equipment in these courtrooms. The funding was secured in 2019 and, after another four months to get the recorders up and running, eviction court was finally on the record for the first time since 2003. Five months later the pandemic hit. Though residential evictions have ground to a near-halt, landlords are still filing cases and claiming emergencies to get exceptions to the moratorium. Commercial evictions, which aren’t covered by the moratorium, resumed in July. With court held on Zoom, proceedings are easier than ever to record, but they haven’t been.
“We are not only no closer to our initial goal of ensuring that all eviction proceedings are recorded, we have lost what little progress we made last year,” the Coalition to Ensure a Court Record—a group of seven legal aid organizations and the Appleseed Center—wrote in a letter to Cook County chief judge Timothy Evans last week. They asked Evans to “ensure that all parties to current and future eviction court proceedings in Cook County have a court record available to them.”
The Illinois Supreme Court issued guidance in March that specifically states Zoom proceedings can be recorded by judges and clerks. But they are “unlikely to do the recordings they’re allowed to do without explicit guidance from the chief judge,” says Malcolm Rich, director of the Appleseed Fund and the Chicago Council of Lawyers. Indeed, legal aid attorneys told the Reader that when they’ve asked judges to record proceedings in recent months—either with Zoom’s built-in recording feature, or using the courtroom equipment if the judge or clerk was logging in from the courtroom—they’ve been told that it’s not possible.
“We ended up hiring court reporters,” says Michelle Gilbert, legal director at the Lawyers’ Committee for Better Housing, recalling a contentious case last fall. Her clients ultimately settled with the landlord but “there were legal issues raised that we would have appealed for sure if we hadn’t settled,” she says. “We were denied a jury, we were denied discovery—these were really important issues we would have appealed.” The expense of private court reporters is out of reach for the typical eviction court litigant—whether a low-income tenant or a mom-and-pop landlord.
Landlord advocates, however, haven’t been sounding the alarm about eviction court proceedings falling back off the record. None of the firms that typically represent landlords in eviction court are part of the Coalition to Ensure a Court Record.
Rob Kahn, whose family law practice is one of the oldest and most respected on the landlord side of the bar, says he’s got “bigger fish to fry” when it comes to problems in pandemic-era eviction court and “the recording isn’t even on my radar.” He wouldn’t specify what those fish are, but said he doesn’t think an absence of court recording infringes on litigants’ rights to appeal.
The lack of recording is just one of the things that has made accessing justice in eviction court paradoxically more difficult since proceedings went online. Tenant advocates say tenants are often unable to connect to Zoom, struggle with spotty Internet connections, and are more confused than usual about proceedings. Sometimes litigants show up to the closed Daley Center for their hearing, only to learn their case is being heard online. Often, tenants don’t receive the copies of orders entered against them (something they’re usually handed in court) because they don’t have e-mail addresses.
Every day in eviction court a few judges also handle more than one courtroom’s worth of calls. The day he slammed the eviction moratorium as “idiocy,” Moltz oversaw cases assigned to two courtrooms; a few days before that he had handled five courtrooms. In a statement, the chief judge’s office cited vacancies, COVID-19, and overlapping vacations and sick days as reasons for the short staffing. “When a single judge handles two Zoom courtrooms, the Zoom process is extremely adaptable and can accommodate the extra cases,” a spokeswoman wrote. But judges clearly struggle with the technical challenges of online court, too. Some keep litigants in the Zoom waiting room until ready for their case—something that isn’t explained ahead of time, making open court functionally closed and leaving people unsure if they’re in the right place. At least one judge, David Skryd, habitually has his camera off.
On January 5, Judge Sondra Denmark kept litigants who were supposed to be in another Zoom room waiting for more than 30 minutes before she finally helped figure out where the case was supposed to be and gave them the right numbers to dial. This was despite the fact that she had instructed them at a previous court date to get her attention and ask for the correct Zoom coordinates at the beginning of her call that day. The landlord’s lawyer attempted to do this several times, but Denmark reprimanded her for interrupting. After finally getting the right information, the landlord’s lawyer was able to transition to the other Zoom call; the tenant—who faced eviction for allegedly not letting the landlord into his unit to make repairs—wasn’t. He had asked Denmark if he could get the hearing rescheduled because 45 minutes after he got on the call his work break had run out, but she refused. Even though he’d shown up to court on time and ready to present his side of the story, the case was decided without him and in the landlord’s favor.
In recent years public awareness about elected Cook County judges has been stimulated by the judicial election guides compiled by Injustice Watch and civic groups. Historically, retention has been a breeze for judges, most of whom work in obscurity and can easily count on 60 percent of voters choosing to keep them on the bench at every election. Though that’s still true for most of the county’s 238 elected “circuit” judges, criminal justice reform advocates have succeeded in a few recent campaigns to unseat judges with unsavory histories of prejudiced statements, inappropriate behavior, and appellate court reversals. Though the county’s 141 “associate” judges are elected by the circuit judges (and can’t preside over felony cases), records about their courtroom actions are still important.
“We want court reporting or court recording in order to provide for accountability in every Cook County courtroom,” says Rich. It would be difficult to scrutinize the qualifications and behavior of judges whose words and actions in open court are never on the record and whose decisions aren’t regularly subject to appellate court review.
This week, after receiving the Coalition’s letter and questions from the Reader, Chief Judge Evans’s office confirmed that all eviction court proceedings are to be recorded via Zoom. In addition, court reporters were assigned to some of the Chicago eviction courtrooms. “At the onset of the pandemic, the court’s digital recording system was not available because it was not possible for the personnel who handled digital recording to operate it from home,” a spokeswoman for Evans wrote in a statement explaining the six-month absence of recording. “When it came to the court’s attention that recording of eviction proceedings had not resumed, the court decided that recording should resume.”
On January 11, the first day a court reporter was present in the Zoom courtroom of Judge James Wright, the effect on the proceedings was palpable. The typical atmosphere—in which judges prioritize hearing cases with attorneys before those with unrepresented litigants, in which everyone knows each other and speaks quickly in legalese, in which those with spotty connections aren’t fully heard—was somewhat disturbed by the presence of the reporter. The lawyers were actually introducing themselves. When people spoke over each other, the court reporter interrupted to break up the noise. It wasn’t clear whether Wright was welcoming of these changes.
“I need the case numbers, I need the spellings, and I need one person speaking at a time otherwise I’m not able to produce a record,” court reporter Maria Castro implored the other people (mostly lawyers) on the Zoom call.
Wright responded sternly: “We understand that Ms. Castro, we’re doing the best we can, but understand I’m not trying to keep people around forever either.” v