Here's the latest lawsuit challenging a government's response to the coronavirus pandemic. This one challenges the California Judicial Council's Emergency Rule 1, which indefinitely closed the courthouse doors to eviction proceedings (what California calls "unlawful detainer").
This one does not employ a takings rationale, but takes a separation-of-powers approach. It's concisely drafted, so we recommend you read the entire document.
Here's the Introduction:
On April 6, 2020, the California Judicial Council responded to the coronavirus pandemic by issuing 11 emergency rules of court. Among these was Emergency Rule 1 (“ER 1”), which violates the fundamental rights of property owners by indefinitely suspending their right to initiate unlawful detainer actions. The rule creates the perverse incentive for all tenants, whether they face financial hardship or not, to refuse to pay their rent during the crisis. And it immunizes from eviction even tenants who create nuisances, damage property, conduct illegal activity, or violate lease terms. ER 1’s restrictions not only visit significant hardship on landlords like Petitioners; they are also unconstitutional.
The rule effectively closes the courthouse doors to Petitioners and obstructs their right to re-enter their own property. It does so because the Judicial Council determined as a matter of policy that tenants should be immunized from eviction in virtually all cases. The rule therefore constitutes a legislative decision forbidden to the Judicial Council under the principle of separation of powers embodied in Article III, § 3, of the California Constitution.
Moreover, because ER 1 contradicts statutes recognizing landlords’ right to re-entry and providing expedited procedures to effect that right, it violates Article VI, § 6(d), of the Constitution, which requires Judicial Council rules to accord with all state statutes. Executive Order N-38-20, which purports to suspend statutes conflicting with ER 1, did not excuse the Council from this requirement by suspending contrary statutes. The order fails to meet the requirements of Government Code § 8571, which permits the Governor to suspend certain statutes in a state of emergency. Even if Executive Order N-38-20 otherwise complied with § 8571, however, the Governor cannot delegate his suspension power to the Judicial Council as the order purports to.
Petitioners understand and are themselves affected by the difficulties of the current pandemic and the impact of the lockdown orders. Both have worked and in general do work with tenants who fall behind on their rent, whether due to the pandemic or other reasons. But Emergency Rule 1 places Petitioners at the mercy of individuals who fail to pay rent, whether or not as a result of financial hardship, and those who disturb other tenants and prevent Petitioners from welcoming other renters in need of housing. The Court should hold the line on the separation of powers by granting Petitioners’ petition for a peremptory writ of mandate under Code of Civil Procedure § 1085 and directing the Judicial Council to revoke Emergency Rule 1.
Pet. at 2-3.
The list of similar challenges continues to grow. See here, here, here, here, here, here, here, here, here, here, here and here, for example. The longer this thing goes on, the more we're going to see.
Verified Petition for Preremptory Writ of Mandate, Christensen v. Cal. Judicial Council, No. BCV-20-101361 (Cal. Super. Kern Cnty. June 15, 2020)
