Supreme Court blocks part of New York’s pandemic eviction ban

The Supreme Court on Thursday issued an emergency order blocking a New York state law aimed at protecting renters from eviction during the coronavirus pandemic.

The move, which came at the request of landlords and over the dissent of the court’s three Democratic appointees, is another signal that virus-related eviction bans are in serious danger at the high court.

However, the new order’s significance for the ban President Joe Biden’s administration reimposed last week under intense pressure from liberal activists is unclear since the legal bases for the challenges differ.

The high court’s order on Thursday blocks part of New York’s COVID Emergency Eviction and Foreclosure Prevention Act, passed last year, that allows tenants to self-certify that they’re experiencing economic hardship because of the pandemic. If they do so, eviction proceedings are effectively shut down till the end of this month.

The court’s majority signaled that the New York law was likely unconstitutional because landlords had no way to challenge a tenant’s claim to have been hard hit by the pandemic.

“If a tenant self-certifies financial hardship, [the law] generally precludes a landlord from contesting that certification and denies the landlord a hearing,” the high court’s order said. “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 justices in the majority also emphasized that the injunction applies only to the self-certification provision and not to another law that provides renters with numerous pandemic-related protections, the Tenant Safe Harbor Act.

Justice Stephen Breyer, joined by Justices Sonia Sotomayor and Elena Kagan, said in a dissenting opinion that they would have denied emergency relief to the landlords challenging the Empire State law.

“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 wrote, quoting an opinion from Chief Justice John Roberts in a ruling last year on a challenge to limits that California churches were facing because of Covid-19. “I conclude that this strict standard is not met here.”

Breyer noted that the New York law at issue includes protections for landlords who own fewer than 10 housing units and that more than $2 billion in rental assistance is in the process of being distributed.

“While applicants correctly point out that there are landlords who suffer hardship, we must balance against the landlords’ hardship the hardship to New York tenants who have relied on CEEFPA’s protections and will now be forced to face eviction proceedings earlier than expected,” Breyer added. “It is impossible — especially on the abbreviated schedule of an application for an emergency injunction — to know whether more hardship will result from leaving CEEFPA in place or from barring its enforcement.”

Breyer also said the court was erring by second-guessing New York officials.

“The New York Legislature is responsible for responding to a grave and unpredictable public health crisis,” he wrote. “The legislature does not enjoy unlimited discretion in formulating that response, but in this case I would not second-guess politically accountable officials’ determination of how best to ‘guard and protect’ the people of New York.”

New York lawmakers who pushed the moratorium, which was enacted last December, argued that allowing tenants to self-certify that they’ve experienced financial hardship was crucial to covering a sufficiently wide swath of struggling renters.

“Any process that purported to adjudicate which of those folks have a hardship and which do not, we concluded in the drafting of this bill would be ineffective,” state Sen. Brian Kavanagh, one of the prime sponsors of the legislation enacting the ban, said last December.

On Thursday evening, he criticized the court’s decision.

“This is a very serious blow to our ability to protect not just tenants but New Yorkers in general,” Kavanagh said. “We need to revisit the law and figure out if there are ways that we can shore it up that are consistent with the Supreme Court’s decision today.”

Landlord groups have continually charged that the lack of proof required in submitting these declarations would allow tenants to benefit even if they hadn’t lost jobs or income because of Covid-19.

Randy Mastro, the lead attorney representing the landlord plaintiffs in the case, said in a statement: “On behalf of New York’s small landlords, we are extremely grateful to the Supreme Court for reaffirming that, ‘even in a pandemic, the Constitution cannot be put away and forgotten.’”

Housing advocates in New York called on Tuesday night for the state Legislature to reconvene and amend the law to allow for hearings on tenants’ hardship declarations, to comply with the emergency order.

“Since tenants in New York State have suffered immensely during COVID-19, they will have no trouble proving hardship and satisfying the supreme courts’ mandate,” the Legal Aid Society, one of the groups that pushed the law, said in a statement. “The state legislature can make this minor fix and prevent thousands of New York residents from losing their homes.”

Spokespeople for Gov. Andrew Cuomo, state Senate Majority Leader Andrea Stewart-Cousins and Assembly Speaker Carl Heastie didn’t immediately respond to requests for comment on the Supreme Court‘s decision.

Lt. Gov. Kathy Hochul, who will replace Cuomo after his resignation takes effect later this month, said in a statement: “No New Yorker who has been financially hit or displaced by the pandemic should be forced out of their home. As New York State's next Governor, I look forward to working with the Legislature to quickly address the Supreme Court's decision and strengthen the eviction moratorium legislation. I will work with our partners in the Legislature to help get the funding available to those in need as soon as possible.”

The Supreme Court’s ruling emerged as a legal challenge to the new federal eviction ban that is awaiting an initial ruling from a District Court judge in Washington. U.S. District Court Judge Dabney Friedrich heard arguments on Monday on a request by two chapters of the National Association of Realtors to halt the new policy.

In that case, landlords are arguing that a Supreme Court ruling in June issued on a 5-4 vote turning down a request to block an earlier version of the federal ban effectively declared any future iterations of the ban illegal. The only member of the court to explain his or her vote was Justice Brett Kavanaugh, who agreed to let the ban in effect at the time run through the end of last month, although he signaled that he believed the Centers for Disease Control and Prevention exceeded its statutory authority in issuing the anti-eviction order.

That ban applied nationwide, but the new one effective through Oct. 3 tracks Covid-19 infection levels. Still, it currently covers about 80 percent of the counties in the U.S. and 90 percent of the population.

Whatever ruling Friedrich issues is expected to be quickly appealed by the losing side to the D.C. Circuit Court of Appeals and then to the Supreme Court.

Bill Mahoney contributed to this report.