Making Sense of Chrysafis v. Marks
On Thursday, the Court decided Chrysafis v. Marks. A majority of the Court granted an application for injunctive relief against the enforcement of part of New York’s eviction protections. Justices Breyer, Sotomayor, and Kagan dissented. We cannot be certain the Court split 6-3, as a justice in the majority may have declined to note his or her dissent. In this post, I will try to make sense of this perplexing entry on the shadow docket.
On July 27, landlords filed an emergency application for injunctive relief. They are represented by Randy Michael Mastro of Gibson Dunn’s New York office. Mastro also successfully represented the Roman Catholic of Brooklyn against (almost former-)Governor Cuomo. He has scored two huge COVID-19 victories on the shadow docket.
The writ presented two questions:
1. Whether New York’s eviction moratorium law, which continues to block property owners from pursuing eviction proceedings or otherwise challenging their tenants’ bald claims of COVID-19 “hardship,” and compels them to serve as the government’s mouthpieces in transmitting government-drafted messages, declaration forms, and lists of recommended legal service providers to their tenants, deprives these property owners of their due process rights and violates their First Amendment rights against compelled speech.
2. Whether the courts below erred in concluding that Jacobson v. Massachusetts, 197 U.S. 11 (1905), requires the application of deferential, rational basis review in evaluating constitutional challenges to government action taken in response to a public health emergency, particularly where, as here, New York has declared its “state of emergency” to be over.
But the Court declined to decide these questions. Instead, the Court limited the Plaintiffs to the “only reliefs applicants” sought in their application:
Applicants therefore respectfully request that the Circuit Justice—or the full Court after referral—grant this application to enjoin Part A of CEEFPA, as extended, pending disposition of Applicants’ expedited appeal in the United States Court of Appeals for the Second Circuit and disposition of any petition for a writ of certiorari and, if such writ is granted, until the rendering of this Court’s judgment.
What is Part A of CEEFPA? The Court explains in one sentence:
If a tenant self-certifies financial hardship, Part A of CEEFPA generally precludes a landlord from contesting that certification and denies the landlord a hearing.
The landlords made two primary arguments why Part A is unconstitutional. First, Part A violates the landlords’ procedural due process rights.
CEEFPA deprives Applicants of their procedural due process rights by mandating that a tenant’s mere submission of a hardship declaration establishes a categorical bar to the commencement or continuation of an eviction proceeding until at least August 31, 2021. CEEFPA Part A §§ 4-6, 8; CEEFPA Extension §§ 2-3. Property owners are given no opportunity to rebut tenants’ hardship declarations, for which tenants need only check a box asserting that eviction would result in either a “significant health risk” or a “financial hardship” to the tenants, with the latter category covering several vague and undefined subcategories. Property owners are not given a chance to be heard at a “meaningful time” or in a “meaningful manner,” because they are not given a chance to be heard at all through at least August 31, 2021, with further extensions possibly to follow. And even when CEEFPA eventually expires, a tenant’s unsubstantiated claim of financial hardship creates an indefinite rebuttable presumption of such hardship in any eviction proceedings that are based on failure to pay rent during the pandemic. CEEFPA Part A § 11.
The District Court, of course, relied on Jacobson and upheld the policy.
Second, the landlords argued that Part A violates their free speech rights:
Here, because CEEFPA mandates speech that Applicants would not otherwise make, and compels them to speak a particular message—outside the context of a proposed commercial transa
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