BOHICA, All Over Again

In an earlier post in which I discussed the etymology of the -FU acronyms, I mentioned the term BOHICA.  Like GPS and nuclear power, the word was developed by the military but is now used in the civilian world (while GPS and nuclear power benefit everyone, the term BOHICA outside the military is now restricted to futures traders, gastroenterologists and Catholic priests).  When I read the text of NY S50001, I was tempted to say “BOHICA again” – but that would both repeat the same information twice and be redundant, in a deja-vu-all-over-again type of way.

The CDC issued a federal moratorium on evictions on September 4, 2020.  That moratorium was extended once, lapsed on July 31 and, like the Terminator, rose again in slightly changed form on August 3 2021.  It was put to bed for good on August 26, 2021 when the Supreme Court, in Alabama Association of Realtors et al. v. Department of Health and Human Services, et al., 594 U.S. ____ (2021), No. 21A23 held that the statutory grant of authority to the CDC in §361(a) of the Public Health Service Act does not extend to services that are not directly linked to public health.  I have a thing or two to say about the reasoning of the opinion and the dissent, but I agree with the result.   

In March of 2020, New York State passed its own COVID moratorium on evictions.  The New York moratorium had two parts.  Under the first part (the Tenant Safe Harbor Act, or TSHA), a resident subject to an eviction proceeding could raise COVID-related economic hardship as a defense to the action.  Under the second part, (the COVID Emergency Eviction and Foreclosure Prevention Act, or CEEFPA), a property owner was required to provide a resident subject to an eviction action a COVID hardship declaration form and a list of legal aid lawyers each time papers were served on the resident.  If the resident checked a box saying that he or she had suffered economic harm at any time since March of 2020, the action would be stayed until the moratorium lapsed.  The resident was not required to establish a causal link between their economic hardship and the COID epidemic, and the property owner could not challenge their assertion.  Effectively, a signed hardship declaration was a get-out-of-jail-free card.

A group of New York City property owners, represented by the Rent Stabilization Association of New York (the “RSA”), challenged the New York moratorium in court.  On August 12, the Supreme Court held for the property owners in Chrysafis v. Marks, 594 U.S. ___(20121), No. 21A8.  The Court held that the COVID hardship declaration allowed under CEEFPA was a violation of the property owners’ rights to due process because the COVID hardship declaration allowed residents to be the judge in their own case.  Because of this, the Court granted emergency injunctive relief to the plaintiffs.

The original, now-hobbled New York moratorium expired on August 31.  S50001 was passed in a special session of the legislature convened by Governor Hochul to extend it and to tweak it in a way that will allow the law to pass constitutional muster under Chrysafis.  The guts of the new law are as follows:

• Property owners are still required to provide a COVID hardship declaration, along with a list of legal aid attorneys.  Once the hardship declaration is filled out and signed by the resident, it creates a rebuttable presumption that the resident has suffered a COVID- related hardship.  Existence of a COVID-related hardship is a defense against an eviction proceeding;

• Property owners are allowed to challenge a resident’s hardship declaration by providing the court with an affidavit, signed under penalties of perjury, that the property owner believes in good faith that the declaration is invalid;

• Provision of the affidavit allows the property owner to challenge the assertion of economic hardship in court.  The burden of production and the burden of persuasion is on the property owner to disprove the presumption of economic hardship;

• If the court finds that economic hardship exists, he or she can require the resident to apply for ERAP funding; and,

• Intentional , persistent destruction of rented property by a resident is a cause of action for an eviction.

Chrysafis, the RSA, and the rest of the plaintiff group challenged the new law as soon as it came out.  In their complaint, filed with the Second Circuit on September 9, they argue that S50001does not provide a constitutional figleaf because it requires property owners to attest to facts that they do not and cannot know.  For example:

Plaintiff Shi’s tenants have not paid rent in over 27 months but “refuse to speak to [her] and have even changed their phone number so [she] can’t reach them” – meaning she has no way of knowing their “financial or health situation since the pandemic” and certainly “cannot swear under penalty of perjury whether or not [her] tenants have been facing any of these alleged hardships during the pandemic…as Plaintiff Shi now explains, “[T]he only way I can seek to evict my tenants is by swearing under penalty of perjury to something that I and so many other landlords cannot possibly know without questioning tenants about what they may or may not be enduring during COVIS-19.  We have to be able to go to court to do that, yet this latest extension, like before, bars us from doing so.”

The complaint also touches on what I think is the even stronger issue that, once a property owner gets to court, the burden is on them to produce facts known only to the defendant in order to prove a negative.  This is discussed in the context of the pre-trial affidavit, but I think that the real issue is that, in court, the burden shift makes the property owners’ task impossible:

The onus falls on the landlord to make assertions under oath – while a tenant’s claim of hardship is not – regarding facts that only the tenant knows.  Cf. Campbell v. United States, 365 U.S. 85, 96 (1961) (noting that “considerations of fairness” militate against ‘plac[ing] the burden upon a litigant of establishing facts peculiarly within the knowledge of his adversary”).  Tenants thus remain the judge and jury in their own cases, exactly the issue identified by the Supreme Court”.

The complaint does not discuss the inadequacy of the current ERAP program as an alternative remedy if residents, like Mrs. Shi’s tenants, refuse to apply for public assistance – but don’t get me started on that.  It also does not discuss the difficulty of proving that property damage is intentional, and whether the new “intentional and persistent” standard preempts pre-existing law that allowed evictions for cause other than non-payment.

I am fairly optimistic about the chances of the Chrysafis appeal.  I do not think any reasonable person could say that the new law is not materially identical to the old law, and the new Court, despite its shortcomings, appears to be sympathetic to property owners.  I am, however, saddened that the law was passed in the first place.  Eviction moratoria can be justified by two policy goals, i.e. a desire to help residents during an economic downturn and an effort to prevent the spread of a dangerous communicable disease.  The first of these two is no longer relevant – we are facing a worker shortage now, rather than a job shortage.  The second is valid but misplaced.  You want to stop the spread of COVID?  Don’t ban evictions.  Mandate vaccinations!  They work, they are free, and they are widely available.  My health is not your choice.  A vaccine mandate is no different than requiring that all drivers get licensed or that all car owners buy liability insurance – but it does not give the majority in the legislature the same dopamine kick or political boost as sticking it to the man.  So, stick it they will.  BOHICA, again.