On August 12, 2021, the United States Supreme Court agreed on procedural due process grounds to halt enforcement of part of New York’s COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (the “Act”), which is set to expire in less than two weeks (Pantelis Chrysafis, et al. v. Lawrence K. Marks, 594 U.S. __ (2021)). Notably, the Court’s 6-3 decision rests on an argument that the landlord plaintiffs first made in late February: that Part A of the Act unconstitutionally deprives landlords of their due process rights, since it allows tenants to avoid eviction by self-certifying COVID-19-related hardship without also affording the landlords an opportunity to contest those certifications. “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,” wrote the justices in the majority (quoting In re Murchison, 349 U.S. 133, 136 (1955)). The Court concluded by making clear that its ruling does not affect any other portion of the Act or the Tenant Safe Harbor Act (TSHA), pursuant to which tenants can assert, and New York courts may recognize, pandemic-related hardship defenses in the course of eviction proceedings (2020 N.Y. Laws ch. 127, §§ 1, 2(2)(a)).
In the dissent, Justice Breyer, joined by Justice Sotomayor and Justice Kagan, opined that, “the New York Legislature is responsible for responding to a grave and unpredictable health crisis. [It] does not enjoy unlimited discretion…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.” This view dovetails nicely with the reasoning District Judge Gary Brown gave for denying a preliminary injunction that the Chrysafis plaintiffs sought in May, as detailed in the June 15, 2021 update to our client alert. Since the Act “governs the timing, format and litigation of eviction proceeds generally,” Judge Brown labeled it a legislative, and not adjudicative, action, which is not susceptible to due process challenges. While the Supreme Court’s majority did not explicitly address this distinction, they nevertheless appear to have rejected Judge Brown’s and Justice Breyer’s shared view.
The Supreme Court’s decision is likely to shape legislative efforts to extend the Act beyond its August 31 expiration date. Those efforts include a bill introduced by Senator Alessandra Biaggi (D-Bronx) and Assemblywoman Yuh-Line Niou to prolong the Act through October 31, 2021. We will continue to assess the impact of the Chrysafis decision and will provide further updates as they become available.