The Supreme Court of Virginia’s recent ruling extending the commonwealth’s coronavirus eviction moratorium to Sept. 7 at the request of Gov. Ralph Northam so that the upcoming special session of the General Assembly can “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” was a good call.
But justifying the decision as a “judicial emergency” — as the 4-3 majority opinion went to great lengths attempting to explain — was a bit over the top.
Virginia’s eviction crisis is an economic emergency directly caused by COVID-19 and Northam’s executive orders that closed down businesses across the commonwealth and threw millions of formerly employed Virginians out of work.
Which also makes it a political emergency, not a judicial one. As Chief Justice Donald Lemons explained in a sharply worded dissent, “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.”
Lemons pointed out that the state-imposed economic crisis and subsequent court-imposed eviction moratorium puts an undeserved financial burden on landlords and “places the legal rights of thousands of Virginia citizens outside the grasp of the judicial system.”
Landlords can neither collect the rent money to which they are contractually entitled nor reclaim their property via eviction proceedings. They are, in effect, being forced by the state to shelter tenants without just compensation — even tenants who were in arrears before the pandemic, who did not lose their jobs but chose not to pay their rent, or whose unemployment and CARES Act benefits were larger than their former paychecks.
Justice D. Arthur Kelsey, who joined Lemons in dissent, pointedly noted that the [moratorium] violates landlords’ due process rights to “contest any of the factual assumptions that the majority appears to be making.” But these same landlords must still meet all of their contractual obligations under the Virginia Residential Landlord-Tenant Act.
In April, when the eviction moratorium went into effect, the commonwealth had already received over $11 billion in federal coronavirus relief aid. Although most of this aid was restricted to helping small businesses and localities stay afloat, Northam used $50 million of CARES Act funding to create the Virginia Rent and Mortgage Relief Program to help Virginians who suffered a loss of income due to the COVID-19 shutdown remain in their homes.
But $50 million is not enough, or else the eviction moratorium would not need to be extended. Northam’s FY 2021 budget is $67 billion. His FY 2022 budget is $68.7 billion. With a revenue shortfall less than anticipated and a freeze on new state spending, the commonwealth can afford to increase state allocations to help renters and make landlords whole. Failure to do so will undermine financial incentives to provide rental units in areas that were already struggling with a lack of affordable housing even before the pandemic.
“The legislature has the constitutional authority and responsibility to address the housing crisis facing the commonwealth,” Justice Kelsey correctly pointed out. And that should be the first item of business on the General Assembly’s agenda when it meets in special session on Tuesday.
Excerpted from The (Fredericksburg) Free Lance-Star.
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