EMERGENCY DOCKET

Court partially blocks New York eviction moratorium

A divided Supreme Court on Thursday night granted a request from a group of New York landlords to lift part of a state moratorium on residential evictions put in place at the beginning of the COVID-19 pandemic. The ruling in Chrysafis v. Marks came three days after a federal district judge in Washington, D.C., heard oral argument in a challenge to the Biden administration’s newly enacted federal moratorium on evictions in most of the country.

The state moratorium allows tenants in New York to avoid eviction by declaring that they have suffered “financial hardship” as a result of the pandemic. New York enacted the moratorium in 2020 and has extended it through Aug. 31, 2021.

The landlords went to federal court in New York to challenge the moratorium, arguing that it violates their right to due process by allowing tenants to put eviction proceedings on hold without any proof that the pandemic has affected them and without giving landlords a chance to rebut their assertions. A federal district court dismissed their challenge, and the U.S. Court of Appeals for the 2nd Circuit turned down the landlords’ request to put the moratorium on hold while they appeal.

The landlords turned to the Supreme Court at the end of July, telling the justices that “the courthouse door has been barred to New York’s landlords” for over a year. And when New York Gov. Andrew Cuomo (D) recently declared that the state’s “disaster emergency” is over, and the economy is reopening, they contended, the state cannot point to the pandemic to justify maintaining its ban on evictions.

Opposing the landlords’ request to block the state moratorium, New York pointed to a decision in late June in which a divided Supreme Court allowed a prior version of the federal eviction moratorium to remain in place for one month. In that case, Justice Brett Kavanaugh provided the key fifth vote to keep the moratorium in place. He wrote that the Centers for Disease Control had exceeded its authority when it extended the nationwide moratorium, but he joined Chief Justice John Roberts and the court’s three liberal justices in voting to maintain the moratorium because it was scheduled to expire on July 31.

Shortly after that federal moratorium expired, the CDC enacted a new, 60-day moratorium on evictions in areas of the country hardest hit by the Delta variant. The legal challenge to the new federal moratorium may reach the justices soon.

In the New York case, the state stressed that its moratorium was scheduled to end on Aug. 31 and that state authorities are “in the process of distributing millions of dollars of congressionally appropriated rental-assistance benefits to landlords and their tenants, which will render many eviction proceedings unnecessary.” Lifting the moratorium now, the state cautioned, would only “disrupt the State’s fragile and ongoing recovery from the pandemic by abruptly inundating the courts with eviction proceedings.” Unlike the challenge to the prior federal moratorium, which centered on the CDC’s lack of authority to enact the ban, this case involves a state’s core power to regulate its own affairs, New York argued.

In a brief unsigned order on Thursday, the Supreme Court granted the landlords’ request to block New York from enforcing the portion of the COVID Emergency Eviction and Foreclosure Prevention Act that generally allows tenants to ward off eviction, without a hearing, simply by certifying that they have suffered financial hardship as a result of the pandemic. Such a scheme, the court explained, “violates the Court’s longstanding teaching that ordinarily ‘no man can be a judge in his own case.’” However, the court continued, tenants can still raise financial problems resulting from the pandemic as a defense in court.

Justice Stephen Breyer dissented from the court’s order, in a three-and-a-half-page opinion that was joined by Justices Sonia Sotomayor and Elena Kagan. Breyer stressed that the eviction ban would have ended on its own terms “in less than three weeks, alleviating the hardship to New York landlords,” and he noted that the hardship could also be reduced by the aid that the state is distributing, which may be used to pay back rent to landlords. But in any event, Breyer continued, any hardship to the landlords must also be weighed against the hardship to tenants, who “will now be forced to face eviction proceedings earlier than expected.” And all of this, Breyer reminded his readers, is happening during “a grave and unpredictable public health crisis.” Citing a concurring opinion by Roberts in a May 2020 case in which the court declined to lift California’s restrictions on crowds at church services, Breyer wrote that he would not “second-guess politically accountable officials’ determination of how best to ‘guard and protect’ the people of New York.”

This article was originally published at Howe on the Court.