Fool Me Once

By James C. Sherlock

I want every tenant who cannot pay his rent because of COVID to be able to stay in his home. I want every landlord who supports them to be paid for their forbearance so they can pay their own bills.

This post starts with both of those goals in mind.

It is about a Governor and a Virginia Supreme Court who created horrible judicial precedents that never needed to happen.

Jim Bacon’s column this morning well summarized the issues with the Virginia Supreme Court’s August 7 order: IN RE: AMENDMENT OF EIGHTH ORDER EXTENDING DECLARATION OF JUDICIAL EMERGENCY IN RESPONSE TO COVID-19 EMERGENCY.

That order reimposed until September 7 a previous Supreme Court denial of residential landlords’ access to the courts to gain adjudication of unlawful detainer actions by tenants accused of failure to pay rent and it banned eviction orders on that same basis.

The Governor and the General Assembly

Governor Northam has been hesitant to call the General Assembly into session because he cannot ultimately control what legislators do when they meet. Republicans and some Democrats appear poised to try to limit, especially in duration, some his virtually unlimited emergency authorities under Virginia law. When written, the drafters of that law simply did not imagine an emergency that would last for more than a month or two.

The Governor, Evictions and Renters Assistance Programs

In early June the Governor requested the Virginia Supreme Court issue an order halting for 20 days residential landlord access to state courts for unlawful detainer actions and eviction directives. The Governor assured them that was enough time for him to get two renters’ assistance programs, one federally funded and one state funded, up and running. He also acknowledged at the time, however, that those two programs might not cover every renter. The Court granted his request.

He could have issued a call that same day for the General Assembly to assemble into emergency session to address any shortfalls. Lawmakers could have met in early July. He did not call them into session.

Then in late July, the Governor sent that same Court a second letter.

In this one he noted that the two rent-relief programs he had cited in his June 7 letter to the court had not worked out as he had expected, and he needed another Court order to give him time to seek legislation from the General Assembly, which he has called back into session on August 18.

A 4-3 majority granted him the extension. The Chief Justice and two of the other Justices were not amused.

A timeline follows to illuminate a shameful and unprecedented relationship between the Supreme Court of Virginia and its Governor.

Gubernatorial Dissembling and a Credulous Court

Before Virginia Courts were set to open in early June, Governor Northam sent a letter to the Chief Justice of the Virginia Supreme Court, Donald W. Lemons, on June 7 and asked him to suspend access to the courts for residential landlords filing unlawful detainer actions and to halt the issuance of writs of eviction.

The Governor had said in a letter to the Chief Justice that he needed time to implement the new Virginia Rent and Mortgage Relief Program (RMRP) funded with federal money from the CARES Act and a separate and complimentary Eviction Diversion Pilot Program (runs July 1st 2020 through July 1st, 2021) funded by the General Assembly pursuant to Va. Code § 55.1-1260. The first supports renters living in residential buildings with federally insured mortgages and the second was supposed to cover rents the RMRP did not cover.

From the Governor’s June 7 letter:

“The Commonwealth’s comprehensive rent relief program will be deployed in partnership with our current statewide networks, including the Continuum of Care and Community Action Agencies. However, this program is still under development, and similar to the Eviction Diversion Pilot Program, will not be in place until after July 1, 2020. In the meantime, thousands of unlawful detainer proceedings may move forward over the next month.

This will allow the Commonwealth the time to implement our comprehensive rent relief program and will relieve the public health risk associated with evicting Virginians from their place of residence.”

The Governor also acknowledged in that same June 7 letter:

“However, not all tenants have access to these federal or state eviction protections. A subset of tenants, including those who are most vulnerable, may be evicted from their homes in the midst of this global pandemic. To that end, my Administration is working to establish a comprehensive rent relief program that will provide targeted financial assistance to households still at risk of eviction during the pandemic.”

He clearly knew that he would need legislation and budget authority from the General Assembly for that expanded program.

The suspension of landlords’ access to the courts was so ordered on June 8 for the Court by Chief Justice Lemons. The order cited Virginia law:

Code § 17.l-330(A) requires that the disaster “substantially endanger[] or impede[] the … ability of persons to avail themselves of the court, or the ability of litigants or others to have access to the court or to meet schedules or time deadlines imposed by court order, rule, or statute.” An absolute bar to access, such as when the courthouse is closed or destroyed due to flooding or other natural disasters, is not required under the statute. Instead, the statute is satisfied when there exists a “substantial” “endangerment” of the ability of a litigant to avail him/herself of court, or when that ability is “impeded.”

Thus the Court, seeing substantial risk that some defendants might not be able to access the courts, established an absolute bar to access by residential landlord plaintiffs.

The Court relied on hearsay for that decision, even if what it heard was from the Governor. It took no briefs. It lived to regret both.

On June 22, the Court – I suspect somewhat embarrassed – amended the FIFTH ORDER to allow courts to hear actions unrelated to the failure to pay rent, such as emergency orders related to violence, illegal drug use and other crimes. They had been in such a hurry on June 8 to act without hearing arguments that they did not think that through.

Also on June 22, the Court, relying on the Governor’s promise in his June 7 letter, also unanimously ordered that:

“Effective June 29, 2020, courts may resume hearing all unlawful detainer actions and issuing writs of eviction.”


Remember that on June 7 the Governor had acknowledged that some renters were not covered by the federal and state renters protection programs. He did not discover that on June 7.  Yet the Governor waited until July 17 to ask the General Assembly to convene August 18

“for the purpose of adopting a budget based on the revised revenue forecast and consideration of legislation related to the emergency of COVID-19 and criminal and social justice reforms.”

On July 24, 2020, the Governor sent another letter to the Supreme Court. He wrote that the emergency extension of the ban that the Court had directed at his request had not proven to be of long enough duration, even though the new programs on which he based his June 7 request were now in place.

“Dear Chief Justice Lemons:

I write to follow up on my June 6, 2020, correspondence requesting that the Court extend and renew the Order of Judicial Emergency suspending unlawful detainer proceedings and writs of eviction for 30 days. At the time, my administration was in the process of establishing a rent relief program to provide targeted financial assistance to households at risk of eviction during the COVID-19 pandemic. I remain appreciative of the Court’s willingness to extend the moratorium through June 28, 2020. …

In the meantime, I again respectfully request 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…”

In other words, he asked the Court to bail him out because of his administrative incompetence and his political decision not to bring the General Assembly back into session until late August.

August – the Supreme Court takes a second bite of the poisoned apple

The Virginia Supreme Court responded to the Governor’s request on Friday the 7th of August with an order resulting from a 4-3 decision from a fiercely divided Court.

From the Majority opinion:

WHEREFORE, pursuant to the authority conferred on the Court by Code § 17.1-330, and at the request of the Governor “to allow his 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 [its] rent relief program,” and with the agreement of a majority of the Justices of this Court, the Eighth Order Modifying and Extending Declaration of Judicial Emergency in Response to COVID-19 Emergency, entered on July 29,2020, is hereby amended as follows:

“Effective August 10, 2020, and through September 7, 2020, pursuant to Va. Code § 17.1-330, the issuance of writs of eviction pursuant to unlawful detainer actions is suspended and continued. However, this suspension and continuation shall not apply to writs of eviction in unlawful detainer actions that are unrelated to the failure to pay rent.”

The majority opinion chose not to address the fact that the Governor could and should have called the General Assembly into emergency session in May or early June so that the August 10 order would not have been necessary.

Emmert’s piece has an extensive discussion of the two different powerful dissents and I recommend it to you.

The dissent written by Chief Justice Lemons said in part:

“The solution properly lies with the legislative branch and its responsibility to provide sufficient appropriations to fund rent relief efforts and with the executive branch to effectively administer such programs. The solution most assuredly does not lie with the judicial branch of government. The courts should not create a preference for one set of litigants over another. The government should not expect one group of property owners who lease their property to tenants to finance their unfortunate circumstances. If there is to be a subsidy, it is properly the responsibility of 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.”

Every word of that was true when the Court issued its original order on June 8.

What we hear in this dissent is the voice of regret for the original decision. It was based on a request from a Governor who proved an incompetent administrator, or more protective of his emergency authorities than of renters or deceitful in his original request to the Court or all three.

No translation of the dissent is needed. Fool me once.

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