Gibson & Dunn Asked the Supreme Court to Life NY Eviction Moratorium in Emergency Filing by Landlord

July 24, 2024 | admin

(THE NEW YORK LAW JOURNAL) Tom McParland, July 29, 2021

An emergency application to Supreme Court Associate Justice Sonia Sotomayor said that the “courthouse door has been barred to New York’s landlords” since the state enacted the moratorium during the early days of the public health crisis.

A group of New York landlords has asked the U.S. Supreme Court to block a state moratorium on evictions during the COVID-19 pandemic, saying that the law, meant to protect vulnerable tenants, “runs roughshod” over their own due process and First Amendment rights.

The landlords, represented by attorneys from Gibson, Dunn & Crutcher and led by Randy Mastro, argued Tuesday in an emergency application to Supreme Court Associate Justice Sonia Sotomayor that the “courthouse door has been barred to New York’s landlords” since the state enacted the moratorium during the early days of the public health crisis.

The measure, they said, remained in eect, despite assurances from Gov. Andrew Cuomo that New York’s disaster emergency had abated.

“The state cannot declare that the emergency is over, on the one hand, and continue to use that same ‘emergency’ to justify the ongoing implementation of a law that infringes upon its citizens’ constitutional rights, on the other,” the ling said.

The Supreme Court on Wednesday directed attorneys for Lawrence K. Marks, the chief administrative judge of the New York state court system, to le response to Gibson Dunn’s application by Aug. 4.

The moratorium, which has been extended through Aug. 31, allows renters to avoid eviction by declaring that the have suffered a “financial hardship” as a result of the pandemic.

The landlords, who said they are facing “signicant hardships” of their own, however, argued that the process stripped them of due process protections by allowing tenants to pause evictions without having to provide any proof to back up the renters’ claims. They also said that the moratorium violated their First Amendment rights by forcing them to give tenants state-crafted information and forms about the moratorium that they believe are “directly adverse” to their interests.

A Brooklyn federal judge earlier this year refused to lift the moratorium, and the U.S. Court of Appeals for the Second Circuit left the measure in place while the landlords appealed, prompting Gibson Dunn’s emergency application to the high court.

The 53-page ling argued that the lower court incorrectly applied the Supreme Court’s reasoning in the 1905 case Jacobson v. Massachusetts, which upheld the state’s ability to enforce mandatory vaccination laws. It also cited to the high court’s 5-4 ruling in November, which blocked New York from enforcing an executive order that restricted gatherings at religious houses of worship.

Mastro argued that recent decision, in Roman Catholic Diocese v. Cuomo, meant that courts must employ traditional constitutional analyses, rather than simply deferring to a state’s emergency powers during a crisis. That was particularly true, he said, in situations involving free speech or discrimination.

“Put simply, the government’s invocation of an emergency cannot justify the desertion of foundational constitutional principles in favor of blind deference to the state,” Mastro wrote. “Yet that is what the lower courts have allowed to occur here.”

“As the country moves into its post-pandemic future, it is all the more imperative that this court clarify that laws originally justied on the basis of a public health emergency cannot evade traditional constitutional analysis, particularly once the state—as New York has done here—declares the emergency to be over within its borders,” he said.

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