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When Indiana Supreme Court Chief Justice Loretta Rush observed a high-volume eviction docket a few years ago, she saw cases moving at extraordinary speed with virtually no tenants represented by counsel. Her conclusion was blunt: “That is not the model of a legal system where the poor, disadvantaged, and vulnerable are protected.”
Her observation reflects a broader truth. Eviction is one of the most drastic remedies our legal system authorizes. The state, through its courts, orders a person or family out of their home, often on short notice with devastating consequences. The extreme character of the eviction remedy requires application of the full protections of civil procedure and due process.
Too often, Indiana’s eviction proceedings fall short of those basic requirements. As documented in the Indiana Justice Project report “Too Fast, Too Easy: How Indiana Courts Are Fueling Our Eviction Crisis,” hearings occur on minimal notice and frequently last only a few minutes, leaving tenants little time to prepare or raise defenses.
These facts raise a simple question: If eviction actions are civil, contract-based claims, why aren’t they treated like other civil cases? The Indiana Court of Appeals addressed that gap in Denitra Jones v. Full Spectrum Property Management, reaffirming that due process applies in full.
First, defenses that go to the landlord’s right to possession, such as habitability or first material breach, must be heard before possession is awarded to the landlord. This includes situations where a landlord’s failure to keep a unit safe and livable may prevent them from evicting them based on the tenant’s alleged breach. Jones made clear these are core, not collateral, issues. A tenant who raises them must be given a meaningful opportunity to present evidence, and the court must resolve them before entering judgment for possession.
Second, a case cannot proceed without a witness. In Jones, no landlord representative appeared, leaving the tenant unable to confront the evidence against her. The Court of Appeals recognized this omission for what it was: a constitutional failure. Pleadings are never evidence, and attorneys cannot testify on behalf of a party. Without a witness, there is no evidentiary basis for adjudicating possession.
Third, hearings must be real adjudications, and courts must take the time required not only to hear the landlord’s evidence but also to hear a tenant’s defenses and allow the tenant to cross-examine. In Jones, the transcript took “less than five minutes to read aloud.”
As Taft v. Piper makes clear, a crowded docket cannot justify depriving a litigant of due process. These requirements should sound familiar to any civil practitioner because they are the basic building blocks of civil practice. Small claims procedure is designed to simplify, not eliminate, those protections.
Jones underscores the risk of losing sight of that framework. When hearings are truncated, when evidence is assumed rather than established, when lawyers’ statements are treated as evidence or when defenses are deferred or ignored, the proceeding ceases to function as a true adjudication. The result is not just error in individual cases, but erosion of confidence in the legal system as a whole.
Courts across Indiana should use this decision as an opportunity to examine their own practices through the lens of this decision. Are contested cases being given the time they require? Are parties truly able to present evidence and defenses? Is possession being awarded based on evidence?
And for the many judges who are already doing this work well, who are taking the time, asking the questions, insisting on evidence and ensuring both sides are heard, Jones is a welcome affirmation. It confirms that those practices are not just preferable; they are constitutionally required.
Eviction cases may be common and fast-moving, but they carry profound consequences. They demand what our legal system promises every litigant: a full and fair opportunity to be heard.•
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Stuart is director of advocacy for Indiana Legal Services, and Terry is senior attorney.
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