Supreme Court blocks part of New York eviction moratorium

By Ariane de Vogue, CNN Supreme Court Reporter

A divided Supreme Court granted a request from a group of New York landlords to block a part of the state’s eviction moratorium that bars landlords from evicting certain tenants in the midst of the pandemic. The court’s three liberal justices dissented from the court’s order and would have left the moratorium in place.

The moratorium was set to expire on August 31.

In an unsigned order, the court said it had blocked a part of the state moratorium that allowed a tenant to “self-certify financial hardship.” The provision precludes a landlord from contesting that certification and denies the landlord a hearing.

The court said the 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 court noted that another provision of the moratorium was not a part of the challenge at hand and would remain in place. That provision allows courts to consider a Covid-related hardship defense in part by assessing a tenant’s income prior to Covid.

Justice Stephen Breyer, joined by Justices Elena Kagan and Sonia Sotomayor dissented, highlighting the fact that the law was set to expire in “less than three weeks.” He said that the landlord’s hardship is “alleviated” because the the law does not stop them from seeking unpaid rent and other damages in a “common-law action.”

He also noted that the state is currently distributing more than $2 billion in aid that can be used in part to pay back rent and alleviate the need for evictions.

Ending the moratorium early, Breyer said, could lead to unnecessary evictions.

“The New York Legislature is responsible for responding to a grave and unpredictable public health crisis,” Breyer wrote, adding that “it must combat the spread of a virulent disease, mitigate the financial suffering caused by business closures, and minimize the number of unnecessary evictions.”

Breyer warned that while the legislature does not enjoy unlimited discretion, he would not “second-guess politically accountable officials’ determination of how best to guard and protect” the people of New York.”

The court’s order concerning the state moratorium comes as the Biden administration — in a separate lawsuit — is fighting to keep a new federal eviction moratorium on the books. By late March, according to government figures, 3.4 million renter households with incomes below $35,000 reported being behind on rent and another 2.5 million own households in the same income range were behind on their mortgage. The US Centers for Disease Control and Prevention, when announcing a new federal moratorium said it was necessary in part due to a surge in the Delta variant.

Both lawsuits were filed by landlords who say they are losing millions of dollars and need to be able to collect rent and recuperate losses.

But the state and federal moratoriums are based on different legal authorities, which means that the courts will take into consideration separate factors when analyzing whether they pass legal muster. New York’s moratorium, for example, stems from the passage of a law, whereas the federal mandate is authorized by the actions of a federal agency, the CDC.

“The apparent basis for the majority’s emergency order does not necessarily call into question the new federal eviction moratorium,” said Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law. “The concern raised here was a specific constitutional objection to unique features of how New York’s moratorium is administered; the objections to the federal rule are more about whether the CDC has the federal statutory authority to impose such a rule in the first place.”

This story has been updated with additional information about the court’s decision.

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