August 20, 2020
Under legal pressure, the rule-making arm of California’s court system, the largest in the United States, has rescinded its pandemic-related emergency order that blocked the state’s courts from hearing eviction proceedings.
Landlords in California and across the country have reportedly been hard hit by emergency eviction moratoriums and by the inability of some of their tenants to pay rent in the troubled economy.
The Judicial Council of California voted 19–1 to scuttle emergency rules governing evictions and judicial foreclosures imposed by the body on April 6.
California Chief Justice Tani G. Cantil-Sakauye, who was appointed to her post in 2010 by then-Gov. Arnold Schwarzenegger, a Republican, acknowledged in a statement that the council had overreached.
“The judicial branch cannot usurp the responsibility of the other two branches on a long-term basis to deal with the myriad impacts of the pandemic,” she said. “The duty of the judicial branch is to resolve disputes under the law and not to legislate. I urge our sister branches to act expeditiously to resolve this looming crisis.”
The Judicial Council of California acted after it was sued June 15 by two small landlords in the Kern County branch of the Superior Court of California.
The landlords argued that by initiating a ban on evictions, the Judicial Council undermined the state’s separation of powers and seized policymaking power from the legislature and governor to block landlords’ access to courts.
“Constitutional limitations on government are never more important than during an emergency,” said landlord lawyer Damien M. Schiff, a senior attorney at Pacific Legal Foundation, a public interest law firm headquartered in Sacramento, California.
“In this case, we challenged an eviction moratorium enacted not by the politically responsible branches of California’s government, but rather by the judiciary. Because it attempted to codify policy rather than merely regulate the practice of state courts, the rule exceeded the Judicial Council’s authority under the California Constitution. We are pleased not only that the Judicial Council has voted to rescind the rule, but also that the Council recognized” that its usurpation of legislative and executive powers to deal with the effects of the pandemic was improper.
The council took its lead from Gov. Gavin Newsom, a Democrat, who “ostensibly using his emergency powers, issued an executive order in March that essentially invited the Judicial Council to come up with some eviction moratorium plan, and the council responded by promulgating about a dozen what it called emergency rules of court.”
Newsom has urged the Trump administration to do more to prevent a potential wave of evictions and foreclosures after a four-month congressional moratorium protecting renters and homeowners during the current pandemic lapsed on July 24. The administration has responded that the president has done everything he’s legally allowed to do to halt evictions.
But even if you think an eviction moratorium is “a good idea, it’s not something that the judiciary is capable of doing constitutionally,” Schiff said in an interview.
“And the first of the rules, Emergency Rule 1, essentially imposed a blanket ban on the court-processing of eviction lawsuits,” he said.
The legal complaint stated that the rule “violates the fundamental rights of property owners by indefinitely suspending their right to initiate unlawful detainer actions [i.e., evictions] … [and] creates the perverse incentive for all tenants, whether they face financial hardship or not, to refuse to pay their rent during the crisis. And it immunizes from eviction even tenants who create nuisances, damage property, conduct illegal activity, or violate lease terms.”
The rule “effectively closes the courthouse doors to Petitioners and obstructs their right to re-enter their own property. It does so because the Judicial Council determined as a matter of policy that tenants should be immunized from eviction in virtually all cases. The rule therefore constitutes a legislative decision forbidden to the Judicial Council under the principle of separation of powers embodied in Article III, Section 3, of the California Constitution.”
“Eviction moratoriums don’t make sense,” Schiff said.
“There’s the more fundamental problem that, the government, sure, has the power to take reasonable action to protect the health, safety, and welfare of its citizens, but if it takes their rights or it takes their property it has to pay for it. And here you have essentially landlords’ property being commandeered into a larger governmental effort to slow the spread of the virus.”
Because the goal of the lawsuit has been accomplished, the legal action has been withdrawn, Schiff added.