SCOTUS explanation for lifting N.Y.'s eviction pause is wanting

6 minute read

Tenants and housing rights activists protest for a halting of rent payments and mortgage debt as sheriff's deputies block the entrance to the courthouse, during the COVID-19 outbreak, in Los Angeles, U.S., October 1, 2020. REUTERS/Lucy Nicholson

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(Reuters) - A single sentence in an unsigned U.S. Supreme Court order on Thursday lifted a temporary bar against evicting people during the global COVID-19 pandemic in New York State, where more than 830,000 tenants are behind on rent.

The ruling in Chrysafis v. Marks came a week after the federal government pointed to survey data that 6.9 million Americans were in arrears and that mass evictions are likely, without action.

The laws passed by the New York legislature gave renters a financial hardship defense in eviction proceedings for a limited period, and allows tenants to do so via a sworn statement that they’re experiencing money troubles or health impacts related to the pandemic. That financial hardship declaration paused new and pending eviction proceedings until the law expired, which would have been on Aug. 31. The law similarly protected small landlords from foreclosure, Reuters reported Aug. 12.

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People could be subject to legal penalties for being untruthful in their declaration of hardship. They could still be on the hook later for unpaid rent and other obligations under their leases; and evictions proceedings would have resumed in about three weeks (assuming the law wasn’t extended).

But the high court’s conservative majority said in a 6-3 ruling that the laws violate a group of landlords’ due process rights because it “denies” them a hearing to challenge whether their tenants actually had financial hardships.

“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,” the majority wrote, citing two older decisions.

Randy Mastro, a Gibson, Dunn & Crutcher lawyer representing the landlords, told me the moratorium barred courthouse doors to "landowners unable to gain access to their own properties from holdover tenants, many of whom haven't paid rent for the past 17 months." The ruling permits "both tenants and landlords to be heard, which is the essence of due process," Mastro said.

It isn’t particularly unusual that the court didn’t elaborate on its decision in this case. The ruling came via its “shadow docket,” a mechanism for deciding urgent disputes that often provides little or none of the reasoning behind the justices’ decision.

What is notable is that the court’s reasoning – not just the one, anemic sentence, but also the doctrines and arguments referred to via citation – doesn’t actually provide much support for its decision. In fact, the precedents the majority relies on tend to cut the other way, against the landlords.

Representatives with the New York Attorney General's office did not respond to my requests for comment.

Two other liberals joined Justice Stephen Breyer’s dissent, arguing that burdens on landlords must be balanced with hardships on tenants, and that the majority usurped state legislators’ policymaking role.

The dissent also pointed out the obvious: that the law delays landlords’ right to be heard, but “is not total deprivation.” Under the court’s precedents, it’s not clear that delaying a hearing is automatically a constitutional violation, Breyer wrote. He cited 1975 precedent in Sosna v. Iowa, a due process case where the court upheld a state law requiring people to have lived in Iowa for one year before seeking a divorce, because it only delayed access to Iowa's courts.

To be sure, justice delayed is justice denied in many circumstances, but the majority says nothing about how reasonable or unreasonable the length of delay is, in light of New York's interests in slowing a deadly pandemic and preventing homelessness.

The only small bit of analysis in the majority order is that New York’s law is unconstitutional because allowing renters to self-certify their hardship defense makes those renters their own judges in their cases. They cited the 1955 precedent In re Murchison for that proposition.

In Murchison, the Supreme Court held that a judge who questioned witnesses in private couldn't accuse those witnesses of perjury and then oversee the open-court trial over those charges.

It requires quite a stretch to analogize that case to New York’s law, which involves an actual judge with the authority of the robe, subjects tenants’ to legal penalty for false statements in hardship declarations, and allows eviction proceedings to continue after its expiration.

In other words, tenants are not the judges of their own hardship declarations under New York’s law. A judge is. Per the statute’s plain language, a judge ultimately decides whether the hardship is sufficient (when the pause expires) and can even decide whether tenants lied about it and whether to punish them.

The second case cited is United States v. James Daniel Good Real Property, from 1993, concerning Good's arrest and conviction for drug crimes.

Nearly five years after the arrest, government officials seized Good’s house under civil forfeiture laws, without prior notice or any hearing beforehand, according to the opinion. The justices said that violated Good's due process rights.

The court also laid out a three-part test in Good that requires: consideration of how private parties are affected by the official action; the risk of erroneously depriving people of that interest; and the “government's interest” in the actions it took – none of which the court did in this opinion.

In the key paragraph, the court said its decision that Good was denied due process was based "upon the importance of the private interests at risk and the absence of countervailing Government needs." Good couldn't hide his house, and the government had means to stop him from selling it, so officials weren't justified in taking it without a hearing. The situation simply wasn't "one of those extraordinary instances that justify the postponement of notice and hearing," the court said.

In this case, the court seems to interpret New York's law as preventing a hearing altogether rather than delaying it.

Also, there’s certainly an argument that an unprecedented global pandemic that has killed more Americans than World War Two, coupled with a looming eviction crisis, presents countervailing government priorities and represents "extraordinary" circumstances.

Of course, the more important action on this issue might lie on the federal side – the Centers for Disease Control and Prevention issued a new moratorium on evictions that remains in effect in New York and elsewhere, and that may soon be subject to Supreme Court review (a district court rejected a bid to block it on Friday).

And that case is more about the scope of the CDC’s powers, rather than due process.

Still, the Supreme Court owes the public more explanation – and a better one – when it decides to take up a shadow-docket petition and issues a ruling that could lead to many more evictions during a pandemic for the sake of protecting landlords from financial hardship.

Opinions expressed here are those of the author. Reuters News, under the Trust Principles, is committed to integrity, independence and freedom from bias.

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Opinions expressed are those of the author. They do not reflect the views of Reuters News, which, under the Trust Principles, is committed to integrity, independence, and freedom from bias.

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Hassan Kanu writes about access to justice, race, and equality under law. Kanu, who was born in Sierra Leone and grew up in Silver Spring, Maryland, worked in public interest law after graduating from Duke University School of Law. After that, he spent five years reporting on mostly employment law. He lives in Washington, D.C. Reach Kanu at