Supreme Court splits on eviction delay power

By Peter Vieth, Virginia Lawyers Weekly – 8/17/2020

A divided Supreme Court of Virginia has acceded to a request from the governor to institute a second suspension of Virginia eviction proceedings. The new, four-week freeze was welcomed by legal aid housing advocates, but the court’s Aug. 7 published order, with two dissenting opinions, highlighted a stark division among the justices on whether the action was lawful.

The court has twice acted to curb eviction proceedings in Virginia courts, both times at the request of Gov. Ralph Northam. On June 8, the court directed that all residential unlawful detainer actions and issuances of writs of eviction be “suspended and continued.”

The June 8 order specifically noted the action met with “agreement of a majority of the Justices of this Court.” That order did not specify the division among the justices. The June 8 suspension of evictions remained in effect through June 28.

Proceedings set to resume
In late June, Northam launched a rent relief program and asked general district judges to delay docketing unlawful detainer actions and writs of eviction for nonpayment of rent until July 20.

In a June 24 letter, Northam said more than 6,000 eviction hearings were to take place between July 20 and Aug. 7.

“A growing wave of eviction proceedings is particularly worrisome,” Northam said. He asked the court to extend and renew its judicial emergency order to put eviction proceedings on hold until Sept. 7.

“This will provide my administration the time to both work with the General Assembly to develop and pass a legislative package that will provide additional relief to those facing eviction and to expand financial assistance for tenants through our rent relief program,” Northam wrote.

Conflict exposed
While the court responded favorably Aug. 7, the differences among the justices were on full display.

The four justice majority cited the statute that allows declaration of a judicial emergency, giving the court authority to “suspend, toll, extend, or otherwise grant relief from deadlines, time schedules, or filing requirements.”

The majority order suspended and continued the issuance of writs of eviction pursuant to unlawful detainer actions from Aug. 10 to Sept. 7. The suspension and continuation does not apply to proceedings unrelated to the failure to pay rent, the order said.

The majority’s directive was signed by Justice William C. Mims, joined by Justices S. Bernard Goodwyn, Cleo E. Powell and Stephen R. McCullough.

The three dissenters spoke with two voices, one succinct and the other detailed.

Chief Justice Donald W. Lemons wrote just two paragraphs, beginning with the acknowledgement of a “national crisis’ of evictions during the pandemic.

“There is not a person on this Court who does not share a deep concern for people in these circumstances. The differences expressed in this order have to do with the proper manner to address this issue,” Lemons wrote.

“The courts should not create a preference for one set of litigants over another,” Lemons said, contending the solution properly lies with 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,” he wrote.

Lemons was joined by Justices D. Arthur Kelsey and Teresa M. Chafin.

Where Lemons was brief, Kelsey offered a four-point explication covering 10 pages.

“The ex parte order entered today places the legal rights of thousands of Virginia citizens outside the grasp of the judicial system,” Kelsey wrote, “How long will Virginia courts be closed for the enforcement of landlords’ legal rights? Will this order be extended as so many of the other judicial emergency orders have been? No one knows.”

Kelsey first argued the judicial emergency statute does not provide authority for a statewide eviction moratorium and the majority’s reliance “rests on the thinnest of analytical grounds.”

Secondly, Kelsey said the order has the effect of usurping a law passed in April that provides temporary relief for some renters during the state of emergency.

Thirdly, the order offends due process traditions and “imprudently sidelines” the adversarial process, Kelsey said.

Finally, he noted “serious constitutional questions” unaddressed by the order.

“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,” Kelsey concluded.

Lemons and Chafin joined in Kelsey’s analysis.

Constitutional law professor weighs in
The dissent was fully endorsed by two lawyers who have followed the court’s eviction actions, Bradley P. Marrs and L. Steven Emmert. But University of Virginia law professor A.E. “Dick” Howard — the chair of the committee that redrafted Virginia’s current constitution — was more measured in his view.

The Constitution of Virginia, Article VI, Section 1, states, “The judicial power of the Commonwealth shall be vested in a Supreme Court” and in such other courts as the General Assembly may create, Howard observed.

“The very fact that the courts are ‘vested’ with the Commonwealth’s ‘judicial power’ carries important implications,” Howard said. “One could argue, for example, that if a pandemic meant that litigants or their lawyers might risk their lives or health in going to court, the Supreme Court might temporarily suspend proceedings. In the present situation, of course, whatever judicial power there might be is clarified and made manifest by Code section 17.1-330(A).”

The dissenters raised “interesting constitutional questions,” Howard added, but he maintains at least one of those questions has no merit. While the dissenters invoked the prohibition on suspension of the laws found in the Virginia Constitution, Article I, Section 7, Howard said that ban is directed at the executive branch and “has no bearing on this case.”

Approval of dissent
Richmond lawyer Marrs, a former delegate, objected when Northam made his second request for a court-imposed moratorium. He welcomed the debate and consideration reflected in the order and dissents.

“As to the positions I took, I don’t think anything I could say could express things better than the two dissents have,” Marrs said. “Indeed, I see several excellent points that had not initially occurred to me. But then, perhaps that’s why they are justices, and I am not.”

Marrs added he was “most disappointed and surprised” to see McCullough joining the majority.

“Had he not done so, the outcome would have been reversed,” Marrs said.

Virginia Beach appellate lawyer L. Steven Emmert also sided with the dissenters.

“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,” Emmert wrote in an online post.

“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,” Emmert wrote on Aug. 7.

Legal aid sees relief
Legal aid attorneys welcomed the relief for struggling renters.

“The main thing I’m focused on is this is a great recognition of the public health crisis the state is facing,” said Elaine Poon of the Legal Aid Justice Center office in Charlottesville.

Poon was unmoved by the constitutional debate set out in the court order.

“I really am more concerned about the due process issues that are related to these evictions moving forward, when litigants have no choice but to go in front of the court to try to save their homes.”

She said renters and tenants are going into courts for hour-long hearings in close quarters to determine if the coronavirus is the actual cause of their income loss.

Poon said she was told of a hearing where all the attorneys — many over 55 — had to go into quarantine afterwards because one of the litigants had been exposed to the virus.

Janae Craddock, a housing law attorney at the Central Virginia legal Aid Society, viewed the order as “better than nothing.” She said it’s not proper to regard the suspension order as a true “moratorium on evictions” because courts are still issuing judgments and giving rights of possession to landlords.