There's not a whole lot in the U.S. Supreme Court's order granting an injunction on appeal that suspends application of a part of New York State's eviction moratorium until such time as a cert petition is filed. The claims in that case are due process claims regarding the deprivation of a hearing, not takings.
But check out the three-Justice dissent, authored by Justice Breyer (joined by Justices Sotomayor and Kagan).
Why? Because it may give some clues how they see the various federal, state, and local moratoria operating, and in doing so may have given us clues about how they might treat a takings challenge. As you know, several takings challenges are in the pipeline, including cases against the CDC moratorium, California's, and the City of Los Angeles's.
Check out page 3 of the dissent:
First, the legal rights at issue in this case are not “indisputably clear.” Applicants argue that CEEFPA denies landlords due process of law because once a tenant submits an attestation of financial hardship, evictions cannot proceed and the landlord cannot challenge the tenant’s claim of hardship, for example, in court. Respondent argues, however, 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”).
Order at 3 (Breyer, J., dissenting).
This should ring your Tahoe-Sierra "mere delay" bell, friends, especially that bit about "eviction proceedings will be conducted exactly as they were before[.]" Same as it ever was. That may be correct in the narrow sense ("exactly" ... really?) that owners will not be prohibited from resorting to the eviction process to recover possession, but critically, it overlooks that it is very, very (very!) unlikely that much of the owed rent that has accumulated all these months is ever going to be collected or otherwise recovered. These moratoria all seem to rest on a divorced-from-reality assumption, which is, in our view, a very shaky foundation.
The dissenters continued on the next page:
Second, applicants have not shown that critical or exigent 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, landlords’ hardship is alleviated because CEEFPA does not preclude 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 landlords 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.
Order at 4 (Breyer, J., dissenting).
This should also give a clue how the Three Dissenters might treat a takings claim. With funds theoretically available to offset some of the back rent owed (if a property owner qualifies, if a ghosted former tenant cooperates, etc.) is that some kind of pressure valve for takings liability?
Maybe we're just desperately looking for clues where none may exist. But the fact that this one broke along the same 6-3 lines as Cedar Point suggests to us that at least we might be getting a bit warm.
Order, Chrysafis v. Marks, No. 21A-8 (U.S. Aug. 12, 2021)
