by James C. Sherlock
There has been extensive discussion here about minimizing residential evictions in Virginia in the time of COVID. I will offer a constitutional approach to achieving that objective.
A Broad Consensus
The Governor and General Assembly want to avoid evictions of residential tenants who are unable to pay rent due to COVID-related issues beyond tenant control. So does every landlord in Virginia. And indeed I think every citizen. We have broad consensus on that point.
The Democratic Governor and Democratic majorities in both houses of the General Assembly can do whatever they wish with legislation. In this case they may wish to create a temporary, COVID-related rent payment program.
But they will have to pay for it, as opposed to asking landlords to eat the costs. That seems to me a valid and effective use for federal COVID money.
And the executive branch will have to administer it, not the courts and not the landlords.
The wrong way
Recent attempts in Virginia to achieve the goal have carefully avoided accountability for elected officials, have been profoundly unconstitutional, and are frankly just strange.
The Governor twice asked the Virginia Supreme Court to deny access to the courts to residential landlords as his preferred alternative. The Court has done so twice. Really.
I have no idea how the Court justified even getting involved.
The core of the legal issues with what has been done to date is the Fifth Amendment to the United States Constitution which reads in part:
“No person shall be … deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
First, the Virginia Supreme Court has twice denied landlords due process of law because:
- it employed ex parte deliberations in consideration of its June 8 and August 7 Orders that did not allow landlords to state their case in opposition to the Orders; and
- the Orders themselves denied landlords access to the courts for unlawful detainer cases in which tenants failed to pay rent.
Second, the Governor and General Assembly failed to provide just compensation for taking the landlords’ property.
The Governor could have recalled the General Assembly in May or June or July to do just that, but he failed to do so for reasons only he can explain. They will be back August 18.
A Right Way
There is a constitutional way out of this mess.
The Governor’s second letter to the Court requested that the Court:
“extend and renew its Order of Judicial Emergency suspending unlawful detainer proceedings and writs of eviction until September 7, 2020. 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…”
He has not to my knowledge specified that legislative package.
Generally the best approach to achieve a goal is the most direct.
Virginia can authorize and fund a program that both can pass Fifth Amendment tests and achieve broadly supported goals. One example:
- Create a state process for an executive department agency to identify tenants who are subjects of unlawful detainer actions and may be unable to pay rent due to COVID-related economic disruptions;
- Direct courts to submit for a rapid ruling on program eligibility the names of defendants before them in residential unlawful detainer actions;
- Allow courts to award to landlords directly from the state the rents due from such tenants under existing contracts; and
- Create a process in which the state can collect repayment from those tenants in such manner and over such a period as the law may specify.
With that type of solution, the courts will offer access to all. The administration, not the courts or landlords, will be responsible for identifying eligible persons and collecting reimbursements from them as the law may specify. The courts will not get bogged down in unlawful detainer cases. The Fifth Amendment rights of landlords will be satisfied. Tenants will remain in their homes.
Critically such a law also will reestablish representative government in the Commonwealth.
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