(Posted August 7, 2020) Stop the presses! Actually, there are no presses here at VANA, so … Stop the electrons! The placidity of this week has given way to a volcanic eruption, in the form of an amendment to the Supreme Court’s most recent judicial-emergency declaration.

The eighth emergency order, issued on Wednesday of last week, was the shortest in the series. It merely continued the prior declaration in force for another 21 days, the maximum period permitted by statute. Under that order, legal proceedings other than jury trials could continue, and deadlines (other than under the Speedy Trial Act) had resumed ticking.

Today the court responds to the Governor’s request for reimposition of the judicial moratorium on eviction proceedings. A bare majority of the court grants that relief, suspending the issuance of writs of eviction from August 10 (that’s next Monday) through September 7, a period of 28 days. The moratorium only applies to writs sought for nonpayment of rent; a landlord can still evict a tenant who has breached a lease agreement in other ways.

With two exceptions, all previous judicial-emergency order have been unanimous. The exceptions are the first, issued March 16, where the chief justice acted before he could consult his colleagues; and the June 8 modification to the fifth order. That one cites “the agreement of a majority of the Justices of this Court,” and also suspended writs of eviction, among other landlord remedies. The order didn’t state which members of the court didn’t go along.

Today the court names names. Justice Mims signs the two-page order for his colleagues, Justices Goodwyn, Powell, and McCullough. This majority notes that the pandemic fits the definition of a disaster, since the Code defines that term to include a  “communicable disease of public health threat.” It goes on to note that that statute is triggered when the disaster substantially impedes the ability of citizens to avail themselves of the court system. The court accordingly does as the Governor had requested, in the terms that I mention above.

That order is followed by a two-paragraph dissent from the chief justice, with whom Justices Kelsey and Chafin join. The chief acknowledges the severity of the “national crisis” at hand, but argues that the proper place to address it is across Ninth Street, in the General Assembly:

The courts should not create a preference for one set of litigants over another. The government should not expect one group of property owners who lease their property to tenants to finance their unfortunate circumstances. If there is to be a subsidy, it is properly the responsibility of the legislative and executive branches. The judicial branch should not put a heavy thumb on the scales of justice and deny property owners access to the courts and enforcement of their long-established rights under the law.

That was the peaceful dissent. Justice Kelsey goes next, and he doesn’t spare the majority, not even by an ounce, in laying out the reasons why the court is overstepping judicial bounds.

Justice Kelsey finds the following faults with the majority’s approach:

  • The judicial-emergency statute exists to help folks who can’t avail themselves of the courts, or to meet schedules or time deadlines. He concludes that “Exactly the opposite will be true under this ex parte order” (italics his). This order impedes a landlord’s access to the courts, even while the courts are capable of adjudicating their claims. The majority cited tenants who might suffer from health conditions that prevent them from coming to court. This dissent calls that an unwarranted generalization, one that landlords are powerless to contest on a factual basis in each case.
  • The legislature passed in April a bill that provides relief to tenants facing evictions, giving them an of-right 60-day continuance. That provision lasts as long as the Governor’s declaration of emergency does, so as Justice Kelsey points out, it’s still in effect. By entering this order, the court has stepped into the legislative and executive arena. He concludes, “Whether this legislative response to the housing crisis is adequate or not, we have no authority under separation-of-powers principles to issue an ex parte judicial order expanding the statutory remedy.”
  • Next, the dissent points out that this order singles out and targets one type of litigant: landlords. And it deprives those landlords of a remedy while doing nothing to prevent a tenant, even one who hasn’t paid rent since March, from suing the landlord for breach of some lease provision. Justice Kelsey argues that the order “rests on a wholly untested factual assumption,” namely, that tenants would have paid their rent but for the pandemic. What about those tenants who didn’t lose their streams of income? What about those who received alternative income streams, such as CARES Act payments? They get relief, too, and landlords have to sit on their hands and fume.
  • The dissent next notes three “constitutional concerns” that the order ignores. First, no one has the power to suspend the execution of generally applicable laws. But this one does that, hampering landlords to the benefit of tenants, in a specific class of cases. It matters not to Justice Kelsey that the judiciary, rather than the executive, is doing the suspending. Next, he posits something that I’ve mused about: This deprivation of a remedy may be a taking of private property for a public purpose, triggering a landlord’s right under Art. I, section 11 for just compensation. And third, this order at least appears to impair the obligation of contracts.

In this last section, Justice Kelsey doesn’t insist that the order definitely violates those provisions; but he correctly notes that the majority grants this relief without even considering them, without a word of explanation or even mention. More to the point, since this order is ex parte, the court never gave landlords an opportunity to flesh those concerns out in briefs or perhaps oral arguments.

The dissent concludes with this passage:

The COVID-19 pandemic and its resulting economic fallout are crises of monumental proportions. I do not question my colleagues’ motives in issuing this ex parte order. But we must do the right thing, the right way, for the right reason. One out of the three is not enough.

I respectfully dissent.

The chief justice and Justice Chafin join this fiery argument in full.

This order today becomes part of our legal history, in large part because it will be published. None of the other orders so specified, and they probably will be available only online or in the Clerk’s Office. Not this one.

In hotly disputed rulings like this, I often lay out what happened and then step back, without revealing where my sentiments lie. It’s a nice literary tool that keeps me out of hot controversies, and since this is my bloody website, no one can tell me to do otherwise.

I’ll step out of that warm, comfortable cave on this one. Like all seven of the justices, I regard the pandemic as a great tragedy for all Virginians, hitting the economically disadvantaged harder than the rest of us. I recognize that a great many tenants find themselves in dire economic straits, and staring down a writ of possession would be catastrophic for them.

But the courts are the wrong place to address this problem. Legally, analytically – and we’re supposed to decide legal matters on an analytical basis – I believe firmly that Justice Kelsey is right: This isn’t a problem that the judicial branch of government has any business intruding into, especially on an ex parte basis. The General Assembly, which meets again in a couple of weeks, can and probably will take some action. But the courts are supposed to be neutral arbiters, dispensing “equal justice under law” without venturing into partisanship, without putting a thumb on the scale. That’s not what the court has done today.

No, there won’t be further proceedings. There probably won’t be a SCOTUS appeal because this implicates Virginia law, though landlords might make a plausible Fifth Amendment taking claim now that Knick v. Town of Scott opens the federal courthouse doors without requiring exhaustion of state-court remedies. The legislature may take action this month that will obviate the need to extend this order beyond its September 7 expiration date. Failing that, we might see another order early next month that extends this moratorium. There won’t even be a challenge to the 28-day duration of the order, seven days longer than the court’s statutory authority. To whom would a prospective petitioner present such a challenge?

One last point: Also unique among the several judicial-emergency orders, Justices Mims and Kelsey sign their opinions. I mean in handwriting; not a mere typewritten indication of authorship. My best guess is that the Reporter of Decisions will include those signatures on the pages of Virginia Reports.