Chrysafis v. Marks ( 2021 )


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  •                    Cite as: 594 U. S. ____ (2021)              1
    BREYER, J., dissenting
    SUPREME COURT OF THE UNITED STATES
    _________________
    No. 21A8
    _________________
    PANTELIS CHRYSAFIS, ET AL. v.
    LAWRENCE K. MARKS
    ON APPLICATION FOR INJUNCTIVE RELIEF
    [August 12, 2021]
    The application for injunctive relief presented to JUSTICE
    SOTOMAYOR and by her referred to the Court is granted
    pending disposition of the appeal in the United States
    Court of Appeals for the Second Circuit and disposition of
    the petition for a writ of certiorari, if such writ is timely
    sought. Should the petition for a writ of certiorari be de-
    nied, this order shall terminate automatically. In the event
    the petition for a writ of certiorari is granted, the order shall
    terminate upon the sending down of the judgment of this
    Court.
    This order enjoins the enforcement of only Part A of the
    COVID Emergency Eviction and Foreclosure Prevention
    Act (CEEFPA). 2020 N. Y. Laws ch. 381. That is the only
    relief applicants seek. See Case No. 2:21-cv-02516, ECF
    No. 1 at 9; Emergency Application for Writ of Injunction 7,
    40. 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. This
    scheme violates the Court’s longstanding teaching that or-
    dinarily “no man can be a judge in his own case” consistent
    with the Due Process Clause. In re Murchison, 
    349 U. S. 133
    , 136 (1955); see United States v. James Daniel Good
    Real Property, 
    510 U. S. 43
    , 53 (1993) (due process generally
    requires a hearing).
    This order does not enjoin the enforcement of the Tenant
    Safe Harbor Act (TSHA), which applicants do not challenge.
    2                   CHRYSAFIS v. MARKS
    BREYER, J., dissenting
    2020 N. Y. Laws ch. 127, §§1, 2(2)(a). Among other things,
    TSHA instructs New York courts to entertain a COVID-
    related hardship defense in eviction proceedings, assessing
    a tenant’s income prior to COVID, income during COVID,
    liquid assets, and ability to obtain government assistance.
    §2(2)(b). If the court finds the tenant “has suffered a finan-
    cial hardship” during a statutorily-prescribed period, then
    it “shall [not] issue a warrant of eviction or judgment of pos-
    session.” §2(1).
    JUSTICE BREYER, with whom JUSTICE SOTOMAYOR and
    JUSTICE KAGAN join, dissenting from grant of application
    for injunctive relief.
    The New York Legislature has passed two laws regulat-
    ing evictions during the COVID–19 pandemic. The first is
    the Tenant Safe Harbor Act, which provides tenants who
    have “suffered a financial hardship during the COVID–19
    covered period” with a defense in eviction proceedings.
    2020 N. Y. Laws ch. 127, §2.2.(a) (McKinney). The second
    is the COVID–19 Emergency Eviction and Foreclosure Pre-
    vention Act of 2020 (CEEFPA). CEEFPA simplifies the pro-
    cess for tenants to invoke financial hardship during the
    pandemic as a defense to eviction. Tenants who wish to as-
    sert the defense must provide a sworn attestation stating
    that they are experiencing financial hardship or health im-
    pacts as a result of the pandemic. 2020 N. Y. Laws ch. 381,
    pt. A, §4. The attestation pauses eviction proceedings until
    the time that CEEFPA expires, namely the end of August
    2021. §§2, 4, 6, 8; 2021 N. Y. Laws ch. 104 (establishing
    CEEFPA’s August 31, 2021, expiration date). Pending evic-
    tion proceedings are stayed, new eviction proceedings can-
    not be filed, and outstanding eviction warrants cannot be
    executed until that date. 2020 N. Y. Laws ch. 381, pt. A,
    §§2, 4, 6, 8. Eviction proceedings may resume after August
    31, 2021.
    Only CEEFPA is before us. Applicants, five New York
    Cite as: 594 U. S. ____ (2021)              3
    BREYER, J., dissenting
    landlords and one landlords’ association, seek an “extraor-
    dinary” form of relief: “an injunction against enforcement of
    a presumptively constitutional state legislative act,” Re-
    spect Maine PAC v. McKee, 
    562 U. S. 996
     (2010), in circum-
    stances where the request for an injunction was denied in
    the lower courts, and the court of appeals has yet to issue a
    substantive ruling. Moreover, the challenged law will ex-
    pire in less than three weeks. Under these circumstances,
    such drastic relief would only be appropriate if “the legal
    rights at issue [we]re indisputably clear and, even then,
    sparingly and only in the most critical and exigent circum-
    stances.” South Bay United Pentecostal Church v. Newsom,
    590 U. S. ___, ___ (2020) (ROBERTS, C. J., concurring) (slip
    op., at 2) (internal quotation marks omitted). I conclude
    that this strict standard is not met here, for three reasons.
    First, the legal rights at issue in this case are not “indis-
    putably clear.” Applicants argue that CEEFPA denies
    landlords due process of law because once a tenant submits
    an attestation of financial hardship, evictions cannot pro-
    ceed and the landlord cannot challenge the tenant’s claim
    of hardship, for example, in court. Respondent argues, how-
    ever, that the law is best viewed not as a deprivation of the
    right to challenge a tenant’s hardship claim but as simply
    delaying the exercise of that right—as of now for less than
    three weeks until the law expires. After August 31, New
    York’s eviction proceedings will be conducted exactly as
    they were before CEEFPA’s enactment. Our precedents do
    not make it “indisputably clear” that this delay violates the
    Constitution. See Sosna v. Iowa, 
    419 U. S. 393
    , 410 (1975)
    (due process is not offended when “the gravamen of [the]
    claim is not total deprivation . . . but only delay”).
    Applicants also argue that CEEFPA violates their First
    Amendment right against compelled speech, because it re-
    quires them to provide their tenants with certain notices.
    However, there are persuasive arguments that CEEFPA re-
    4                   CHRYSAFIS v. MARKS
    BREYER, J., dissenting
    quires only the dissemination of “purely factual and uncon-
    troversial information” in the context of commercial speech
    and is therefore authorized by our precedents. Zauderer v.
    Office of Disciplinary Counsel of Supreme Court of Ohio,
    
    471 U. S. 626
    , 651 (1985). Given the arguments on the
    other side, I again cannot say that the legal rights in issue
    are indisputably clear.
    Second, applicants have not shown that critical or ex-
    igent circumstances justify our intervention. As I have
    said, CEEFPA’s pause on eviction proceedings will expire
    in less than three weeks, alleviating the hardship to New
    York landlords. Any hardship is further alleviated by pro-
    visions of CEEFPA that provide relief from foreclosure for
    property owners who own 10 or fewer dwelling units. See
    2020 N. Y. Laws ch. 381, pt. B, subpts. A–B. Further, land-
    lords’ hardship is alleviated because CEEFPA does not pre-
    clude them from seeking unpaid rent and other damages in
    a common-law action. Finally, respondent states that New
    York is currently distributing more than $2 billion in aid
    that can be used in part to pay back rent, thereby helping
    to alleviate the need for evictions. See 2021 N. Y. Laws ch.
    53, p. 635.
    While applicants correctly point out that there are land-
    lords who suffer hardship, we must balance against the
    landlords’ hardship the hardship to New York tenants who
    have relied on CEEFPA’s protections and will now be forced
    to face eviction proceedings earlier than expected. This is
    troubling because, as noted, New York is in the process of
    distributing over $2 billion in federal assistance that will
    help tenants affected by the pandemic avoid eviction. See
    ibid.; Consolidated Appropriations Act, 2021, H. R. 133,
    116th Cong., 2d Sess., 686–692 (2020). Ending CEEFPA’s
    protections early may lead to unnecessary evictions. It is
    impossible—especially on the abbreviated schedule of an
    application for an emergency injunction—to know whether
    more hardship will result from leaving CEEFPA in place or
    Cite as: 594 U. S. ____ (2021)             5
    BREYER, J., dissenting
    from barring its enforcement.
    Third, the public interest weighs in favor of respecting
    New York’s “especially broad” latitude “to act in areas
    fraught with medical and scientific uncertainties.” Mar-
    shall v. United States, 
    414 U. S. 417
    , 427 (1974). The New
    York Legislature is responsible for responding to a grave
    and unpredictable public health crisis. It must combat the
    spread of a virulent disease, mitigate the financial suffering
    caused by business closures, and minimize the number of
    unnecessary evictions. The legislature does not enjoy un-
    limited discretion in formulating that response, but in this
    case I would not second-guess politically accountable offi-
    cials’ determination of how best to “guard and protect” the
    people of New York. South Bay United Pentecostal Church,
    590 U. S., at ___ (ROBERTS, C. J., concurring) (slip op., at 2)
    (quoting Jacobson v. Massachusetts, 
    197 U. S. 11
    , 38
    (1905)).
    For these reasons, I would not grant relief now, and
    therefore respectfully dissent. Of course, if New York ex-
    tends CEEFPA’s provisions in their current form, appli-
    cants can renew their request for an injunction.
    

Document Info

Docket Number: 21A8

Judges: Stephen Breyer

Filed Date: 8/12/2021

Precedential Status: Relating-to orders

Modified Date: 8/12/2021