A group of Democrats are sponsoring a bill that would create a right to trial by jury in Colorado for unlawful detention of real property cases.
Rep. Jennifer Bacon, one of the bill’s prime sponsors, said that House Bill 25-1235 comes before the legislature because the Colorado Supreme Court asked the legislature to answer the question about whether Coloradans have the right to a jury trial in eviction cases.
The case in question was In re Mercy Housing Group v. Bermudez, in which the state’s high court initially found in favor of Naomi Bermudez, who demanded a jury trial in an eviction proceeding. But the court later retracted the opinion after a factual error related to a summons came to light in the case.
“We are proposing that yes, folks in Colorado have a right to a jury trial,” Bacon said. She noted that 29 other states offer the right to a jury trial in eviction cases, including Texas, Florida and Michigan. But the intent of bringing the bill went beyond the narrow scope of answering the question from the state Supreme Court.
“Generally, we are bringing this forward to support tenants’ rights, in that they may have a chance to defend themselves in being able to stay in their home,” Bacon said. “Without the jury trial, the concern that we have is that this docket moves very quickly and people cannot keep up.”
In addition to creating the right to a jury trial in eviction proceedings, the bill also adds provisions around personal service to the defendant and the time frame to file an answer to an eviction claim. As initially drafted, the bill would require at least one attempt of service on three separate days.
Spencer Bailey, a housing attorney at the legal organization Community Economic Defense Project, told the committee that tenants had a right to a jury trial in eviction proceedings for much of Colorado’s history.
“Over time that right was eroded, not by legislation, but by trial courts, starting sometime in the early 2000s, ruling that tenants didn’t have this right,” Bailey said. “But that wasn’t because there was any change of law, that was just an erosion over time, turning evictions into high speed proceedings, decided solely by judges, giving tenants very little time to prepare.”
He urged the committee to vote in favor of the bill and said that the measure would restore fairness and ensure that tenants can exercise their right to a civil jury trial like any other civil litigant.
Eida Altman, the director of the Denver Metro Tenants Union, said that tenants deserve due process, which means the right to a jury trial.
“Right now if you’re sued for as little as a few hundred dollars in a civil case, you have the right to request a jury trial,” Altman said. “But if you’re facing the loss of your home, that right disappears. Evictions are one of the most consequential legal proceedings tenants, our members, can go through, often determining whether they keep a roof over their head or end up on the streets.”
Andrew Hamrick, general counsel of the Colorado Apartment Association, said that CAA believes that the bill will have a very damaging effect on the eviction process.
“If you’re going to encourage people to loan a piece of property to another person, which is exactly what we want to do, you have to give them a reasonably predictable, reasonably priced and reasonably timed way to get the property back,” Hamrick said. “Otherwise you foreclose renting at all and force people to sell.”
Hamrick said that in eviction cases, the status quo is always an advantage to the defendant residing in the property.
“By allowing a defendant to try these relatively straightforward cases to a jury, they will significantly increase the nuisance value of the defendant’s position,” Hamrick said.
Jacob Hollars, a trial and appellate lawyer appearing on behalf of the Colorado Civil Justice League, said that in most instances jury trial rights are waivable by contracts.
“This bill would prohibit it in the residential eviction context. Doing that will most likely result in tenants often invoking that right and further delaying the proceedings,” Hollars said. “In addition, as has been alluded to, in this state there are many landlords who are individuals, they are not these big corporate landlords, this will adversely affect them.”
“They can’t afford lawyers any more than the tenant can. They’re often reliant on their tenants for a good chunk of their income, so paying a lawyer to go to a one- or two-day jury trial on a simple matter will only take units off the market,” Hollars added.
A representative from the Colorado Bar Association, Carolin Topelson, said that the association was in an amend position due to a few concerns about the bill, specifically with the provisions on service and how that change would affect tenants.
“In particular, we would request that, instead of having to try three times on separate days, that we go with what’s under [Colorado Revised Statute Section] 13-40-108 and do two times to keep that consistent,” Topelson said. “But also we’d recommend that we’d remove the idea of diligent effort. Our concerns are that a process server may try to show up at a tenant’s workplace, which would embarrass the tenant and/or harass them.”
Another concern for the CBA was in relation to potential injury the bill could do to the court system in Colorado. “The courts are already pretty bogged down with evictions,” Topelson said. She noted that when an eviction case goes from a possession hearing to a jury trial, it turns a process that would have taken a few hours to one that takes more than a day, and it taxes the jury pool. She said that the CBA would like to work with the drafters of the bill to benefit everybody and to take these issues into account.
Following testimony, the bill passed on a 7-3 party line vote with two amendments.
One amendment aimed at addressing concerns around the costs impact to the courts. It gives the court the ability, through its own motion or by a motion from either party, to strike a jury demand and set the action for trial only if there is a material question of fact. “It’s kind of saying let’s beef up summary judgment,” Bacon said.
She believes that this will bring the number of cases down, with a goal of 1-2% of cases proceeding to jury trial.
The second amendment strikes the option in the originally drafted bill to show up by phone, which Bacon said came from a request from the city and county of Denver.