Q & A with Mark Swartz on Shadid v. Sims

The Illinois First District Appellate Court recently issued an opinion in the case of Shadid v. Sims involving the Chicago Residential Landlord Tenant Ordinance (RLTO) and whether attorneys are entitled to recover their fees for counter-claims in eviction court.

We sat down with LCBH’s Legal Director, Mark Swartz, to get an understanding of how the court’s decision impacts renters.

What was the original case that led to the appeal?

It was Shadid v. Sims, and it began as a typical eviction case for non-payment of rent. But as LCBH attorneys know too well, not all eviction cases are simply a question of “did you or did you not pay your rent?” In this case, the Sims, who were the renters, counter-claimed that the landlord had failed to maintain the premises free of bedbugs, cockroaches, and rats in violation of the RLTO. The judge agreed with the Sims, their rent was fully offset and they were allowed to stay in their home. LCBH, itself, has alleged any number of habitability counter-claims similar to the Sims.

The part of the Shadid v. Sims case that gets unusual is the judge’s response to the Sims request to recover their costs and attorneys’ fees. The RLTO entitles a “prevailing plaintiff” in certain actions to be compensated for court costs and attorneys’ fees. Fee shifting provisions, such as those in the RLTO, are fairly common in public interest laws. In this case, the Shadid’s attorney argued that the RLTO provides attorneys’ fees only for “plaintiffs,” and not “counter-plaintiffs.” The presiding judge, the Honorable Judge George F. Scully, agreed with Shadid and denied the Sims their request. This decision surprised a lot of attorneys and that is what led to the appeal.

How and why did LCBH become involved?

LCBH was asked to be part of a coalition of other tenant advocacy groups (including LAF, Shriver Center, and Uptown People’s Law Center) to file an amicus curiae (friend of the court) brief in support of the tenants’ position.

The RLTO has been used by both legal aid attorneys and attorneys in private practice to financially support the representation of renters in eviction court who have valid and legal defenses to eviction, such as those related to habitability or retaliation. If the eviction court’s interpretation of the RLTO fee-shifting provision prevailed, this would upturn three decades of practice, as well as overrule an earlier LCBH appeal, Pitts v. Holt:

The RLTO “was passed with a recognition of the historical disparity of bargaining positions between landlord and tenants and to protect tenants from overreaching by residential landlords. (citation omitted.) The attorney's fees provisions are meant to give a financial incentive to attorneys to litigate on behalf of those clients who have meritorious cases but who, due to the limited nature of the controversy, would not normally consider litigation as being in their client's financial best interest.”

What did the amicus brief say?

Our brief made the policy argument that the eviction court’s interpretation of the RLTO’s attorneys’ fee-shifting provision undermines its main purpose, which is to encourage lawyers to represent renters. It also arbitrarily favors tenants who have claims under the RLTO but are not facing eviction over tenants who have the exact same claims but are facing eviction.

What did the appellate court decide?

The court sided with the tenants. It noted that under the rules of civil procedure, there is no substantive difference between a claim brought by a plaintiff and the same one brought by a counter-plaintiff. In analyzing the intent of the RLTO, the appellate court, quoting another important RLTO case, Lawrence v. Regent Realty, found that “’the clear intent of the ordinance is to protect tenants’ and its ‘purpose is rooted in the public policy that recognizes that tenants are in a disadvantageous position with respect to landlords.’” The decision also cited Pitts v. Holt.

The appellate court agreed with the tenant advocates’ analysis that the eviction court’s interpretation would lead to absurd results: “we cannot find that the Chicago City Council intended to discriminate against eviction-defendant RLTO-counter plaintiff tenants in favor of mere RLTO-plaintiff tenants–a truly arbitrary distinction which creates a manifestly capricious result.”

What does this mean for renters?

Various court monitoring efforts over the years have highlighted the disadvantages renters face in eviction court simply due to the lack of appropriate information or counsel. The majority of eviction cases only last a few minutes. Most renters in eviction court are pro se (representing themselves) and are rarely allowed to develop and litigate any meritorious defenses or counterclaims. Legal aid attorneys can only take a small percentage of eviction cases. If this decision had not been reversed it would have been detrimental to the rights of renters facing the loss of their homes in eviction court because it would have discouraged many private attorneys from taking on these cases.

What does it mean for attorneys?

This case means that attorneys, both legal aid and private attorneys, who count on receiving payment through the fee-shifting provisions of the RLTO, will be able to continue representing renters in eviction court.