No Equal Justice for Landlords

The Virginia State Supreme Court extended yesterday the judicial moratorium on eviction proceedings for another 28 days. The split decision prompted a blistering rebuke from D. Arthur Kelsey, which L. Steven Emmert summarized yesterday in the post below, republished here from his blog, Virginia Appellate News & Analysis. — JAB

Today the court responds to the Governor’s request for reimposition of the judicial moratorium on eviction proceedings. A bare majority of the court grants that relief, suspending the issuance of writs of eviction from August 10 (that’s next Monday) through September 7, a period of 28 days. The moratorium only applies to writs sought for nonpayment of rent; a landlord can still evict a tenant who has breached a lease agreement in other ways.

With two exceptions, all previous judicial-emergency order have been unanimous. The exceptions are the first, issued March 16, where the chief justice acted before he could consult his colleagues; and the June 8 modification to the fifth order. That one cites “the agreement of a majority of the Justices of this Court,” and also suspended writs of eviction, among other landlord remedies. The order didn’t state which members of the court didn’t go along.

Today the court names names. Justice Mims signs the two-page order for his colleagues, Justices Goodwyn, Powell, and McCullough. This majority notes that the pandemic fits the definition of a disaster, since the Code defines that term to include a  “communicable disease of public health threat.” It goes on to note that that statute is triggered when the disaster substantially impedes the ability of citizens to avail themselves of the court system. The court accordingly does as the Governor had requested, in the terms that I mention above.

That order is followed by a two-paragraph dissent from the chief justice, with whom Justices Kelsey and Chafin join. The chief acknowledges the severity of the “national crisis” at hand, but argues that the proper place to address it is across Ninth Street, in the General Assembly:

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.

That was the peaceful dissent. Justice Kelsey goes next, and he doesn’t spare the majority, not even by an ounce, in laying out the reasons why the court is overstepping judicial bounds.

Justice Kelsey finds the following faults with the majority’s approach:

  • The judicial-emergency statute exists to help folks who can’t avail themselves of the courts, or to meet schedules or time deadlines. He concludes that “Exactly the opposite will be true under this ex parte order” (italics his). This order impedes a landlord’s access to the courts, even while the courts are capable of adjudicating their claims. The majority cited tenants who might suffer from health conditions that prevent them from coming to court. This dissent calls that an unwarranted generalization, one that landlords are powerless to contest on a factual basis in each case.
  • The legislature passed in April a bill that provides relief to tenants facing evictions, giving them an of-right 60-day continuance. That provision lasts as long as the Governor’s declaration of emergency does, so as Justice Kelsey points out, it’s still in effect. By entering this order, the court has stepped into the legislative and executive arena. He concludes, “Whether this legislative response to the housing crisis is adequate or not, we have no authority under separation-of-powers principles to issue an ex parte judicial order expanding the statutory remedy.”
  • Next, the dissent points out that this order singles out and targets one type of litigant: landlords. And it deprives those landlords of a remedy while doing nothing to prevent a tenant, even one who hasn’t paid rent since March, from suing the landlord for breach of some lease provision. Justice Kelsey argues that the order “rests on a wholly untested factual assumption,” namely, that tenants would have paid their rent but for the pandemic. What about those tenants who didn’t lose their streams of income? What about those who received alternative income streams, such as CARES Act payments? They get relief, too, and landlords have to sit on their hands and fume.
  • The dissent next notes three “constitutional concerns” that the order ignores. First, no one has the power to suspend the execution of generally applicable laws. But this one does that, hampering landlords to the benefit of tenants, in a specific class of cases. It matters not to Justice Kelsey that the judiciary, rather than the executive, is doing the suspending. Next, he posits something that I’ve mused about: This deprivation of a remedy may be a taking of private property for a public purpose, triggering a landlord’s right under Art. I, section 11 for just compensation. And third, this order at least appears to impair the obligation of contracts.

In this last section, Justice Kelsey doesn’t insist that the order definitely violates those provisions; but he correctly notes that the majority grants this relief without even considering them, without a word of explanation or even mention. More to the point, since this order is ex parte, the court never gave landlords an opportunity to flesh those concerns out in briefs or perhaps oral arguments.

The dissent concludes with this passage:

The COVID-19 pandemic and its resulting economic fallout are crises of monumental proportions. I do not question my colleagues’ motives in issuing this ex parte order. But we must do the right thing, the right way, for the right reason. One out of the three is not enough.

I respectfully dissent.

The chief justice and Justice Chafin join this fiery argument in full.

This order today becomes part of our legal history, in large part because it will be published. None of the other orders so specified, and they probably will be available only online or in the Clerk’s Office. Not this one.

In hotly disputed rulings like this, I often lay out what happened and then step back, without revealing where my sentiments lie. It’s a nice literary tool that keeps me out of hot controversies, and since this is my bloody website, no one can tell me to do otherwise.

I’ll step out of that warm, comfortable cave on this one. Like all seven of the justices, I regard the pandemic as a great tragedy for all Virginians, hitting the economically disadvantaged harder than the rest of us. I recognize that a great many tenants find themselves in dire economic straits, and staring down a writ of possession would be catastrophic for them.

But the courts are the wrong place to address this problem. Legally, analytically – and we’re supposed to decide legal matters on an analytical basis – I believe firmly that Justice Kelsey is right: This isn’t a problem that the judicial branch of government has any business intruding into, especially on an ex parte basis. The General Assembly, which meets again in a couple of weeks, can and probably will take some action. But the courts are supposed to be neutral arbiters, dispensing “equal justice under law” without venturing into partisanship, without putting a thumb on the scale. That’s not what the court has done today.

No, there won’t be further proceedings. There probably won’t be a SCOTUS appeal because this implicates Virginia law, though landlords might make a plausible Fifth Amendment taking claim now that Knick v. Town of Scott opens the federal courthouse doors without requiring exhaustion of state-court remedies. The legislature may take action this month that will obviate the need to extend this order beyond its September 7 expiration date. Failing that, we might see another order early next month that extends this moratorium. There won’t even be a challenge to the 28-day duration of the order, seven days longer than the court’s statutory authority. To whom would a prospective petitioner present such a challenge?

One last point: Also unique among the several judicial-emergency orders, Justices Mims and Kelsey sign their opinions. I mean in handwriting; not a mere typewritten indication of authorship. My best guess is that the Reporter of Decisions will include those signatures on the pages of Virginia Reports.

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34 responses to “No Equal Justice for Landlords”

  1. Steve Haner Avatar
    Steve Haner

    Great minds think alike….but despite that I was sitting down to write this up at this moment….glad I hadn’t finished.

    Contracts in Virginia are now worth less than the paper they are written on. A contract is useless unless a court will enforce it. The issue at hand is rental contracts, leases, but the COVID-19 pandemic is so rapidly changing the social and legal underpinnings of the American economy, turning this into an entirely different country, that it could easily be used as an excuse for voiding other contractual relationships. It probably has been.

    Below is another link to the opinion. Two pages to destroy your constitutional rights, and about 12 pages of dissent to explain how it is wrong.

    I think the real heart of Kelsey’s dissent is pointing out that the statute cited by the court about judicial powers during an emergency is in the Code to protect access to the courts, but it is being used as an excuse to deny access to the courts. I would like to see the majority’s flawed and abusive decision tested in a federal court and overturned.

  2. Let’s boil the logic of the Va Supremes’ ruling down to its essence:

    (1) The economic fallout from COVID-19 has made it difficult for thousands of tenants to pay their rent.

    (2) Without judicial proceedings, however, it is impossible to know whether failure to pay rent is due to extenuating economic circumstances or some other reason that does not warrant delay or forgiveness.

    (3) The Supremes decided in favor of an entire class (tenants) regardless of individual circumstances. The majority is using its judicial powers to apply a remedy that properly belongs to the legislature.

    That’s the essence of “social justice” — justice for classes of people, not individuals.

    Look, we live in perilous times, and the social strains caused by the COVID-19 shutdown are real. The Governor and the General Assembly need to act. Their failure to act in a more expeditious manner, however, is not the fault of property owners.

    One predictable consequence of this ruling is that landlords will become pickier about signing up credit-worthy tenants. Tenants with marginal credit-worthiness and income histories will find it harder to find housing. There are always unintended consequences to rulings like this. Always.

    1. Steve Haner Avatar
      Steve Haner

      Who are the small landlords? The giant corporations are going to do fine, but what about the duplex owner, or somebody with three or four rental units? Most of those are middle or lower middle class families. Owning property is how they build wealth! I thought we were for that! Where do they go for relief on their taxes, their utility billings, their repair bills? What protects them from foreclosure? The dissent is devastating.

      The good news is the opinion does leave open evictions on other issues than rent (say for damage or for rule-breaking.) But then, if the pandemic health risk is the real problem, why are those cases okay?

      1. VDOTyranny Avatar

        Isn’t that the point? Taking advantage of a crisis by forcing smaller players to sell at a discount to those with deeper pockets. How else are the Plantation Elite supposed to make a dollar!

        1. LarrytheG Avatar

          I think the smaller players are screwed no matter what. Even if they evict, the chances that they’d find new and paying tenants is not good. But I guess they get some satisfaction from booting the non-payers…

          From what I understand, the properties that are financed through Federal sanctioned loans like Fannie Mae – protect the landlords from foreclosure.

          And again – this is going on in almost every state, not just Virginia.

          1. VDOTyranny Avatar

            > the chances that they’d find new and paying tenants is not good.
            Thats a generality and a huge assumption. The specific circumstances may vary.

            As you know, people on other states lining up to jump off a bridge doesn’t mean its a smart thing to do.

            Have a good weekend, I have to get back to work

      2. Nancy_Naive Avatar

        Don’t worry about the smal landlords. They’ll be bought out by the big corporations. Works with farms.

    2. Far be it from me to correct Mr. Emmert, but…Article III of the Constitution of Virginia provides for the Separation of Powers. Would be interesting for a GOP General Assembly member to bring an action under Article III and demand the 7 current Supreme Court Justices recuse themselves as they would be subject to the suit. I suppose they’d have to allow the retired Supreme Court Justices decide this matter…

  3. Reed Fawell 3rd Avatar
    Reed Fawell 3rd

    I agree whole hardheartedly with the dissents. And with Jim’s and Steve’s comments. In short, I would boil these “Judicial findings of the Virginia Supreme Court as follows.

    The dissents follow the law in Virginia.

    The majority opinion of the Supreme Court follows and enforces the political wishes and ambitions of Virginia’s Governor. It also usurps the power and jurisdiction that is vested solely in Virginia’s legislative branch, the Virginia General Assemble. It also enforces the Governor’s political wishes and ambitions with an ex parte judicial order that constitutes a ultra vires act that is beyond the Virginia Supreme Court’s legitimate authority.

    Thus The Courts ruling is lawless exercise beyond its powers, a permanent stain on the Virginia Supreme Court that’s gone rogue, abandoning the law to become a political body serving the political interests of the Governor alone, not the laws of state of Virginia.

  4. Baconator with extra cheese Avatar
    Baconator with extra cheese

    Even if evictions aren’t happening are credit scores being crushed for nonpayment?
    But then again there is a push to end credit scores as well.
    Interesting times….. There are lots and lots of bubbles that are going to get popped. The rapid changes to the economy can’t go on for ever.
    Glad I didn’t buy that rental house here in RVA I contemplated a year ago! And I’m glad I pulled most of my investements from the market… Preserving capital for after the burst.

  5. djrippert Avatar

    A lot of people I know are seeing their adult children leave the apartments when the lease is up and moving back home. They’re either unemployed and don’t need an apartment near a job that doesn’t exist or they’re working from home and don’t need an apartment near their place of employment. I wonder how many people in that situation bother to pay their rent. The landlords can’t evict them, they are already gone. Will the landlords make a serious effort to collect back rent or just write it off? Meanwhile, who is moving into these rental units in places like Arlington? Not the unemployed. Not the people working from home out of their parents’ house. Not recent college graduates who were lucky enough to find work from home employment. Sounds like the beginning of a real estate meltdown to me. But it could be a buying opportunity. This epidemic will end. They always end. The much worse Spanish Flu ended. When it does end young people will still like to live in places like Arlington. Buy low, sell high?

  6. LarrytheG Avatar

    Haven’t the Feds done the same thing – same logic?

    And let’s say the landlords get their wish… is there ANY market at all for rentals now with so much unemployment? Who is looking for rental apartments right now?

    1. Steve Haner Avatar
      Steve Haner

      I’m not sure President Trump is going to add the step of seeking the cooperation of the courts, and he now seems to think he can act without Congress on this front. Hence my claim this situation is changing the world as we thought we knew it.

      1. Baconator with extra cheese Avatar
        Baconator with extra cheese

        Yup. Everyone left, right, and center needs to make it be known that rule by executive orders needs to stop.

        1. LarrytheG Avatar

          Yeah, I thought when this administration took over all those EOs were going to STOP! Instead….

          1. Steve Haner Avatar
            Steve Haner

            Then you weren’t paying attention in 2016….Separation of powers was not a campaign promise.

          2. LarrytheG Avatar

            I thought I heard promises to UNDO the prior administrations EOs because it was wrong to do EOs… no?

            ” “One of the problems I have with what Obama did is he’s always signing executive orders,” Trump said on “Meet the Press” in January. But when asked whether he would issue executive orders of his own, Trump said he wouldn’t “refuse them,” adding that Obama “led the way. … If I get elected, many of those executive orders that he signed, the first day, they’re going to be unsigned.”


            so now that Trump is doing EOs out the wazoo, many Governors are also doing it …

            The ones that are on Northam on EOs are mute on Trumps, no?

  7. LarrytheG Avatar

    If one does a little search on this – almost every other state is also dealing with the issue. Some (both GOP and Dem) have moratoriums, others are considering or have existing ones expired and there are others with no moratoriums.

    But characterizing Virginia and Northam as ‘extreme’ on this is not true – other states are also dealing with it.

    Now I do agree that landlords should also get relief. It would be patently unfair and wrong to give relief to renters and let the landlords go down holing the bag.

    What happens to the folks that do get evicted? I suspect some will move in with relatives or friends..but some will end up joining others on the streets and if they have kids – then what?

    In that regard – I don’t think the problem can be fixed just on the backs of landlords… Some folks ARE going to end up on the streets – and some with kids and that is Northam and the VA GA responsibility also but looking at how Congress is dealing with these issues – is not encouraging.

    1. Steve Haner Avatar
      Steve Haner

      Hence my claim this is changing the world as we thought we knew it. Hello. Nobody called anybody extreme. The genius of this revolution is its stealth. Yes, once this goes on another three months, six months, etc., what possible exit strategy works?

      1. Reed Fawell 3rd Avatar
        Reed Fawell 3rd

        We are witnessing the destruction of the American middle class, and America’s main street businesses.

        This includes small and mid sized businesses and entrepreneurs of all sorts and kinds: those whose dreams, ambitions, independence, competence and boldness built and sustained this country for 300 years (think Wright Brothers): and we are wittnessing the destruction of their culture, their institutions, their systems and freedoms, that nurtured them and allowed them to thrive, as individuals, as never before in human history.

        Thus we are witnessing the destruction of America before our very eyes, daily.

        1. LarrytheG Avatar

          Sitting here listening to Trump – eviction moratorium, $400 a week, plus student loan forgiveness.

          This doesn’t sound like a Conservative proposal…

          This sounds like Ralph Northam. No?

          And he’s doing it by FIAT – geeze…

          1. LarrytheG Avatar

            On the other hand – he says he wants to permanently get rid of the FICA tax – which funds Social Security and Medicare Part A.

            This would be a big debate in Congress – and an election issue but here we have one guy who says he’s gonna kill FICA/SS/medicare Part A.

            but of course, it’s Northam that is running wild… 😉

          2. Steve Haner Avatar
            Steve Haner

            No Larry, today we’re yelling at the SCV.

          3. Reed Fawell 3rd Avatar
            Reed Fawell 3rd

            Yes, the Supreme Court of Virginia has now forfeited its responsibility to justice under, and according, to the laws of the state, irrespective of the parties involved.

            Thus, no longer does the Supreme Court of Virginia render Blind Justice, where completing claims are litigated under the law, balanced on the Scales of blind Justice without regard to the parties in interest.

            Now, instead, the reverse happens in Virginia. Special interests now rule the decisions of the Virginia Supreme Court.

            In this case, the special interest that dictates to the Virginia Supreme Court is the Governor of Virginia. Today the Virginia Supreme Court is so craven and corrupt that it issues executive orders on the Governor’s behalf, while at the same time that Supreme Court denies all the other parties in interest to that case a forum wherein to argue their side of the case before the Supreme Court. There is no judicial corruption greater than this in any American state.

            Hence, in the home of US Supreme Court Justice John Marshall, the separation of governing powers of Virginia has altogether collapsed. Now a single party leftist state ruled by the governor, rules Virginia, its legislature, its courts, its people, its institutions, it society and its culture in the land of Washington, Jefferson, Madison, and Marshall.

        2. Reed Fawell 3rd Avatar
          Reed Fawell 3rd

          Here is where we are headed with these developing corruptions in Virginia’s government and its crony allies:

          Will 2021 Be 1984? By Victor Davis Hanson • July 19, 2020

          Cultural revolutions are insidious and not just because they seek to change the way people think, write, speak, and act. They are also dangerous because they are fueled by self-righteous sanctimoniousness, expressed in seemingly innocuous terms such as “social activism,” “equality,” and “fairness.”

          The ultimate aim of the Jacobin, Bolshevik, or Maoist is raw power—force of the sort sought by Hugo Chavez or the Castro dynasty to get rich, inflict payback on their perceived enemies, reward friends, and pose as saviors.

          Cubans and Venezuelans got poor and killed; woke Chavezes and Castros got rich and murderous.

          Leftist agendas are harder to thwart than those of right-wing dictators such as Spain’s Francisco Franco because they mask their ruthlessness with talk of sacrifice for the “poor” and concern about the “weak.”

          Strong-man Baathists, Iranian Khomeinists, and the German National Socialists claimed they hated capitalism. So beware when the Marxist racialists who run Black Lives Matter, the wannabe Maoists of Antifa, the George Soros-paid activists, “the Squad” and hundreds of state and local officials like them in cities such as Portland, Seattle, and Minneapolis, and Big Tech billionaires take power. These are “caring” people who couldn’t care less about the working classes or the hundreds of African-Americans murdered in America’s inner cities.

  8. VaNavVet Avatar

    SH: “Owning property is how they build wealth. I thought that we were for that.”
    Just maybe not so much when it comes to minorities.

  9. LarrytheG Avatar

    I think this is a PR problem. Northam should label it as an Affordable Housing Initiative… 😉

    If FEMA were a possible path, mobile homes could be set up for the evicted.

    We still seem to have no plan for what happens to the kids in these situations.

  10. Top-GUN Avatar

    Once Again… Government picking winners and losers..
    I own 7 single family residential rental homes… I don’t need government telling me how I should manage my properties…
    I have 25 years experience, bureaucrats have zip. They don’t have my knowledge or experience dealing with tenants or managing properties…
    A Pox on the Guvner, the Supremes and a boatload of liberals out there telling us how to run our businesses..
    And BTW, a good chunk of tenants are just that because they make bad, stupid and irresponsible financial decisions, they spend their money away on lottery tickets, cars, booze, cigarettes, 7/11 coffee and big macs… and then wonder why they’re broke… they don’t budget, and think they are entitled to live the good life. .
    I live the good life, but I scrimped, saved and worked 60 hr weeks to get there,,, now I’m taxed to help the lazy and indolent,,, ridiculous…

  11. LarrytheG Avatar

    these cost 22K.

    Some folks live in their full-time..

    Roof over head, heat and cool… does need water/sewer/electric hookups.

    1. James Wyatt Whitehead V Avatar
      James Wyatt Whitehead V

      I know of a number of tradesmen that live exactly like this. There is a farm out in Bealeton VA that has several RVs parked here and there. All lived in by working tradesmen. Low parking fees, electric/water hookup, no hassle from RV campground rules, and it reminds me of Hazzard County from the Duke Boys show. Just good old boys trying to get by and not making trouble while they do it. Americans have a great way of adapting to situations as long as we still have that freedom.

      1. LarrytheG Avatar

        Well, you probably could survive in one for $600 a month… and in our travels we’ve seen quite a few campgrounds – and some of them have areas set aside for long-term/permanent campers. We met a nurse who lived in one while she was getting started on a new job. We’ve seen retired folks and that is their only home. We’ve met others who “full-time” in their retirement … 365 days a year – they head south in the winter…

        Small hardshell campers can be had for 10K.

    2. Nancy_Naive Avatar


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