Breyer Dissents as Supreme Court Blocks N.Y. Eviction Relief
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Supreme Court’s Left Flank Dismayed by Conservative Majority’s Trouncing of New York State COVID Eviction Relief Law

WASHINGTON, DC - FEBRUARY 28: (L-R) Supreme Court Chief Justice John Roberts, Supreme Court Associate Justice Anthony Kennedy, Supreme Court Associate Justice Stephen Breyer, Supreme Court Associate Justice Sonia Sotomayor and Supreme Court Associate Justice Elena Kagan look on as U.S. President Donald Trump addresses a joint session of the U.S. Congress on February 28, 2017 in the House chamber of the U.S. Capitol in Washington, DC. Trump's first address to Congress focused on national security, tax and regulatory reform, the economy, and healthcare. (Photo by Alex Wong/Getty Images)

Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan listen to then-President Donald Trump’s address before a joint session of congress in a February 28, 2017 file photo.

The minority trifecta of legally liberal U.S. Supreme Court justices late Thursday expressed dismay at the full court’s decision to issue an injunction against a New York State law passed in response to the novel coronavirus pandemic.

A group of landlords (led nominally by one Pantelis Chrysafis) filed the originating case against Lawrence K. Marks, the Chief Administrative Judge of the state court system, to address their complaints complaints that part of New York’s eviction moratorium scheme — which actually involves two separate laws — violated their own property rights.

“[F]or more than sixteen months and counting, the courthouse door has been barred to New York’s landlords, denying them any meaningful opportunity to be heard,” the plaintiffs complained in a July 27 application to the nation’s high court.

After a “trial on the merits,” the plaintiff property owners noted for the high court that a district court judge acknowledged they collectively “satisfactorily demonstrated a risk of irreparable harm” from continuing to house tenants for more than a year without payment. The landlords called the laws and the lower court judgments an “ongoing deprivation of their constitutional rights” and an associated “crippling hardship[]” as to the property or properties they own.

The two laws in question are Part A of the COVID Emergency Eviction and Foreclosure Prevention Act (CEEFPA) and the Tenant Safe Harbor Act (TSHA).

The plaintiffs did not complain about the TSHA. It was the first New York State law passed to protect tenants after the pandemic. The plaintiffs summed it up as follows (citations omitted and some internal punctuation removed):

The TSHA “prohibits the eviction of residential tenants who have suffered financial hardship during the COVID-19 covered period.” However, it does not bar eviction proceedings. Rather, it provides that tenants “may raise financial hardship as a defense in a summary proceeding.” Under the TSHA, “in determining whether a tenant suffered a financial hardship during the COVID-19 covered period,” the court is to consider, among other factors, a tenant’s income prior to and during the pandemic; a tenant’s liquid assets; and a tenant’s eligibility for public assistance benefits.

The second law, CEEFPA, expanded upon the first. It required landlords to provide tenants notice that they could not be evicted for certain (but not all) reasons during the COVID-19 pandemic. And landlords were also required to give tenants legal documents via which the tenants could assert their rights to occupy a rented property by merely asserting they had suffered either “lost income” or “increased costs” associated with the COVID-19 pandemic.  A signature and a promise that the income assertions were true were all that was required; landlords did not under CEEFPA have the right to challenge the tenants’ assertions in court.

And that’s why the landlords sued the state to ban the further operation of CEEFPA: it gave aggrieved tenants the unilateral ability to shut down both new and old proceedings against them with the stroke of a pen and with no meaningful judicial review. As the plaintiffs pointed out to the Supreme Court while pleading for relief, some landlords have been stuck with tenants whose occupancy they are “not allowed to dispute . . . until at least August 31, 2021” despite the tenants’ alleged violations of “numerous lease terms,” “significant property damage,” and “multiple police calls in response to their conduct.”  Another couple of landlords from the same family said they were “owed $57,600 in rent arrears” and do not personally have the money “to maintain the property while also paying their own rent.” Another said he is owed “more than $80,000 in arrears” after a year and a half of nonpayment.

The majority of the justices were sympathetic to the landlords’ complaints which alleged a lack of constitutional due process.

“CEEFPA generally precludes a landlord from contesting that certification and denies the landlord a hearing,” the high court’s order granting injunctive relief explains. “This scheme violates the Court’s longstanding teaching that ordinarily ‘no man can be a judge in his own case’ consistent with the Due Process Clause.”

Justice Stephen Breyer disagreed. Justices Sonia Sotomayor and Elena Kagan joined him.

Breyer put significant stock in the tenants’ “sworn attestation stating that they are experiencing financial hardship” and balked that “the challenged law will expire in less than three weeks.”

“Under these circumstances, such drastic relief would only be appropriate if ‘the legal rights at issue [we]re indisputably clear and, even then, sparingly and only in the most critical and exigent circumstances,'” Breyer said while citing Chief Justice John Roberts’ 2020 opinion in South Bay United Pentecostal Church v. Newsom.

Breyer claimed the legal rights at stake in this case were not “indisputably clear.”

Citing the respondents’ explanation of the law, Breyer opined as follows viz. CEEFPA:

[T]he law is best viewed not as a deprivation of the right to challenge a tenant’s hardship claim but as simply delaying the exercise of that right—as of now for less than three weeks until the law expires. After August 31, New York’s eviction proceedings will be conducted exactly as they were before CEEFPA’s enactment. Our precedents do not make it “indisputably clear” that this delay violates the Constitution.

While Breyer admitted that various landlords did “suffer hardship,” he suggested a balancing between the landlords’ interests as owners and the tenants’ interests as possessors of property. And he said that the landlords had other avenues for recovery under New York’s various COVID-related laws — avenues which are not frequently discussed but which nonetheless remain available:

[A]pplicants have not shown that critical or exigent circumstances justify our intervention. As I have said, CEEFPA’s pause on eviction proceedings will expire in less than three weeks, alleviating the hardship to New York landlords. Any hardship is further alleviated by provisions of CEEFPA that provide relief from foreclosure for property owners who own 10 or fewer dwelling units. See 2020 N. Y. Laws ch. 381, pt. B, subpts. A–B. Further, landlords’ hardship is alleviated because CEEFPA does not pre- clude them from seeking unpaid rent and other damages in a common-law action. Finally, respondent states that New York is currently distributing more than $2 billion in aid that can be used in part to pay back rent, thereby helping to alleviate the need for evictions. See 2021 N. Y. Laws ch. 53, p. 635.

Breyer later bemoaned that the court’s issuance of an injunction against CEEFPA would subject tenants to “hardship” — three weeks earlier than the law originally contemplated. And he complained that New York State should be afforded an “especially broad” ability to manage affairs which affect the health and safety of its citizens. But he also suggested at the tail end of his dissent that he was largely perturbed by the timing of the landlords’ application more than anything:

“Of course, if New York extends CEEFPA’s provisions in their current form, applicants can renew their request for an injunction,” he said in vain.

That won’t be necessary given the majority’s issuance of an injunction right now.

Read the order below:

[Photo by Alex Wong/Getty Images]

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Aaron Keller holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University.  He is a former anchor and executive producer for the Law&Crime Network and is now a Senior Editor for the Law&Crime website. DISCLAIMER:  This website is for general informational purposes only.  You should not rely on it for legal advice.  Reading this site or interacting with the author via this site does not create an attorney-client relationship.  This website is not a substitute for the advice of an attorney.  Speak to a competent lawyer in your jurisdiction for legal advice and representation relevant to your situation.