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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27 responses to “Fool Me Once”

  1. Jim Bacon and James Sherlock, have you noticed that Gov. Northam is going the roundabout way to kill as much small business, small homeowners, as much as possible? Leaving us only big box stores to track what we do? If people have to have another 2008 housing bust, where will folks go? They have to rely on the govt. then … more so than ever.

    1. VDOTyranny Avatar

      Certainly Small Business is a thorn in the side to Unions and government regulators.

      1. On the federal level, Congress works really hard to favor the creation of small business. So there are lots of carve-outs, like weaker enviro-regs and so on. It is almost prime directive number 1, so we get things like ethanol-in-gaso mandates etc. Agreed Virginia we do not seem to try too hard encourage business, except on our terms.

      2. VDOTyranny Avatar

        │On the federal level, Congress works really hard to favor the creation of small business.

        “I’m from the government and I’m here to help!”

  2. Jim, thanks for providing all this background to the Va Supreme Court ruling. You’ve laid out the issues very clearly. I have nothing to add. What a travesty.

  3. sherlockj Avatar

    The one sentence version of what happened is that Governor Northam threw renters under the bus as he prioritized keeping the General Assembly out of session.

  4. Peter Galuszka Avatar
    Peter Galuszka

    Call me an idiot but I thought the GA was going into session aug. 18. Can you clear this up?

    1. Peter Galuszka Avatar
      Peter Galuszka

      Also, who is Steve Emmert?

      1. sherlockj Avatar

        Emmert is an attorney from Virginia Beach. Why do you ask?

      2. sherlockj Avatar

        Peter, I just saw your Steve Emmert reference in the text and fixed it. I have no idea how that got in there. I wrote ‘Jim Bacon’. I had never heard of Emmert until you asked and I looked up his name. Twilight Zone stuff.

        1. Steve Emmert wrote the original post on his blog. I re-posted it to Bacon’s Rebellion. When you wrote your post, you apparently assumed I was the author, perhaps because I did not display Emmert’s byline. (I wrote a brief preface to the blog post noting his authorship.) As editor of the blog, I corrected that misperception in your blog post.

    2. Feb. is when the 2 week lock down would occur. Its now more than 6 months later and carnage has been done.

    3. sherlockj Avatar

      I won’t call you an idiot, because you are certainly not one. See my next post for the issue of legislatures being in session after April 1 and before 15 August to deal with COVID issues. Virginia is one of only 12 that did not have a session during that period in which the legislature could deal with COVID issues.

  5. Peter Galuszka Avatar
    Peter Galuszka

    So no va special session for Covid? If so, I see

    1. sherlockj Avatar

      Peter, read my post again. I know there is going to be a special session on August 18.

      If there had been one on July 1, the Governor’s letter and the new Court order would not have been necessary because there either would have been a legislative/executive solution or the GA would have refused to grant the new authority and money for renters relief. Either way, the Supreme Court would not have gotten involved. Which was my point. And the Chief Justice’s.

  6. Eric the Half a Troll Avatar
    Eric the Half a Troll

    And to think all along that he could have done it by Executive Order… who knew…??‍♂️

  7. James Wyatt Whitehead V Avatar
    James Wyatt Whitehead V

    It looks like the Special Session is going to be a joke. A very limited list of bills. The focus seems to be on limiting the duration of theexecutive’s emergency powers, more crime/law enforcement reform, and prepay for getting caught with pot. I don’t think the issue of renters and landlords is on the radar screen.

    1. sherlockj Avatar

      The Governor is hung pretty much teed up to be hung by his own rope on this issue. If the GA doesn’t take it up, the Chief Justice may hold the other end.

  8. TooManyTaxes Avatar

    Ex Parte Young, 209 U.S. 123 (1908) held a suit for an injunction against officials acting on behalf of states of the union can proceed despite the State’s sovereign immunity, when the State acted contrary to any federal law or contrary to the constitution. The facts involved state regulation of railroad charges, both intrastate and interstate. The claim was that the latter was unconstitutional. A bit of legal legerdemain in the opinion, but the law is the law.

    1. sherlockj Avatar

      Thank you. I really hope Virginia’s landlords or their property management association will sue in federal court because they are suffering government takings without fair reimbursement and because they are being denied equal protection under the law. I think they will win if they do.

  9. Steve Emmert wrote the original post on his blog. I re-posted it to Bacon’s Rebellion. When he wrote his post, Jim Sherlock apparently assumed I was the author, perhaps because I did not display Emmert’s byline. (I wrote a brief preface to the blog post noting his authorship.) As editor of the blog, I corrected that misperception in Jim’s blog post.

  10. TooManyTaxes Avatar

    What really troubles me as an attorney is the continued use of ex parte proceedings by the courts. Ex parte litigation, where only one side appears, is greatly restricted to emergencies and not for long-standing problems. We’ve reached the point where it is simply wrong and probably unconstitutional for the Governor (any governor and any state) to continue to approach the courts for uncontested relief. The supreme court should have conditioned any extension of its order to opening the proceedings to, in this case, the rental real estate industry and property owners.

    1. TMT that worries me that the judges think its ok. We have come to the point where the judiciary is deciding things more based on ideology than democracy/republicanism. This sets the stage for allowing only one party into a court case that allows others to potentially lose property, money, etc. without representation.
      In any matter.

  11. sherlockj Avatar

    Thank you. I have urged landlords to sue in federal court over the unconstitutionality of the June 8 and August 7 Supreme Court orders. The Fifth Amendment:

    “nor be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation.”

    would seem to prohibit both ex parte decisions in the matter of the landlords and the taking of their property without compensation.

    The only argument available to the Virginia Attorney General in defending such a suit would be crisis urgency. My post above that documents the other options available to the Governor, including recalling the General Assembly, and the extended time frame in which he could have exercised them makes that argument weak beyond repair.

    1. TooManyTaxes Avatar

      As an officer of the court and most especially as the state’s chief lawyer, Herring has a duty to say “no” to Northam when the latter continues to push for ex parte rulings.

      1. sherlockj Avatar

        First time I ever say “Herring” and “duty” in the same sentence.

  12. […] wrote a few months ago that the Supreme Court actually acted at the request of the Governor to relieve […]

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