Chrysafakis v. Marks

Once, there were a couple of socially deviant porpoises, but “socially deviant” doesn’t begin to describe it.  A non-exhaustive list of the type of stuff they got up to would include:

• Bestiality;
• Coprophagia;
• Simony;
• Gratuitous use of the f-word.

They spent most of their time in Manhattan, but they also hung out in the outer boroughs and sometimes travelled to the Catskills to trash hotel rooms and break crockery.  Both of them had a thing for a mynah bird who lived in New Jersey.

“Hey Mynah”, they would say.  “Come party with us”

“Grow a fist”, she would say.  “Evolve.  Learn to jerk off.”

“Fuck.”

“There you go again.”

She thought they abused the f-word.

“You know how to make a mammal feel this fucking small”, they would say, straining to press their flippers together.”

“Eew”, she would say.  “Just – eew.”

But after some begging, she agreed to go to their place.  The peacock she was living with worked at Goldman Sachs and looked good on the beach, but he was born-in-the-suburbs MBA boring.  The porpoises sent their friend, a kangaroo, to pick her up.  When the animals reached the middle of the span of the Outerbridge crossing, a pig from Staten Island stopped them, impounded their vehicle, put the kangaroo in jail and charged him with taking a mynah across state lines for immoral porpoises.

Har, har.

The Mann Act is still on the books.  In its current form, it is quite reasonable:

Whoever knowingly transports any individual in interstate or foreign commerce, or in any Territory or Possession of the United States, with intent that such individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title or imprisoned not more than 10 years, or both. (18 U.S. Code §2421)

The scope of the act was much broader when it was passed by Congress in 1910.  As originally drafted, the act applied to any person who shall knowingly transport or cause to be transported, or aid or assist in obtaining transportation for, or in transporting, in interstate or foreign commerce, or in any Territory or in the District of Columbia, any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose (P.L. 61-277).  Although the intent of the act was to crack down on sex traffickers, the category “immoral purposes” was wickedly overbroad.  In Caminetti v. United States, 242 U.S. 470 (1917), the Supreme Court held that “immoral purposes” included consensual, unpaid-for extramarital sex even though the legislative history made it quite clear that the law was only intended to apply to prostitution.  The plain meaning of “immoral purposes” in 1917 included what the Court referred to as “concubinage” and what we would today refer to as good clean fun, and the plain meaning, rather than the intent, said the Court, controlled.

I have always struggled to understand constitutional law.

For example – in my con law class, we read a case in which Justice Souter opined that topless dancing is expression, and that as such it should be protected by the First Amendment.  When I read that, my response was, “I don’t think this guy has spent much time around strippers”.  Stripping is commercial activity.  If a stripper and her customer speak at all during a lap dance, he will speak about his children, and she will speak about her father.  Most of the time, they will keep quiet and he will think about – well, I’ll draw you a picture if you need it – and she will count her tips.  Strippers do what they do for the money, not for love of the dance.  Like cab drivers, waiters, tax lawyers, gastroenterologists, bail bondsmen, arbitrageurs, physical therapists, hit men, psychotherapists, chiropodists and mobile home park owners, some even like their jobs, some of the time.  A desire for money, a knack for close client contact and an inclination to stay in shape (pole dancing is hard) are all valid reasons to take a job – but they do not make the performance of that job constitutionally protected activity.

But once in a while, the Court gets it right.  Yesterday was one of those times.  In Pantelis Chrysafakis et al. v. Lawrence K. Marks, 594 U.S. ___ (2021), No. 21A8, the Supreme Court upheld an application for emergency injunctive relief against part of the New York State eviction moratorium.  The ruling is narrow; it only applies to a slice of the moratorium, and it only applies so long as the lower court case is pending.  However, reading the tea leaves, it might signify bigger things.  Maybe Pavlidis’ owl has cracked open an eyelid.

Two statutes constitute what we call the New York State eviction moratorium.  Under one of the statutes, the Tenant Safe Harbor Act (the “TSHA”), a tenant can raise economic duress due to the COVID pandemic as an affirmative defense in suit for eviction due to non-payment of rent.  Under the other statute, the COVID-19 Emergency Eviction and Foreclosure Prevention Act, or CEEFPA, a property owner may not commence a suit for eviction due to non-payment of rent if the tenant provides a declaration that he or she has suffered economic hardship because of the COVID pandemic.  A property owner must supply a non-paying tenant with a form COVID hardship declaration, along with the name, address and phone number of the property owner, and a list of local legal aid attorneys, whenever an action for eviction for non-payment is begun.  A hardship declaration signed by the tenant creates a rebuttable presumption that the tenant has, in fact, suffered economic hardship due to the pandemic.  The burden of proving otherwise is on the property owner.  In practical effect, the CEEFPA COVID hardship declaration form is a get-out-of-jail free card for a tenant who does not pay rent.

As a policy matter, eviction moratoria are longer justified.  Plenty of COVID relief money, child tax credits and increased unemployment benefits have been distributed.  There is now a labor shortage, rather than a job shortage.  COVID is now a pandemic of choice among the unvaccinated.  Nevertheless, the state eviction moratorium is the law.

In Chrysafakis, five property owners and an industry association sued to enjoin New York courts from enforcing the COVID hardship declaration section of CEEFPA on the grounds that allowing tenants to self-certify economic hardship, rather than requiring them to prove it in court, deprived property owners of due process, because it delegated the process of determining whether a tenant had suffered economic hardship to the tenant, rather than leaving it in the hands of a court.  The plaintiffs also appear to have argued that the requirement that property owners provide tenants with a signature-ready form as well as a list of legal aid attorneys constituted forced speech (I am ignorant of First Amendment jurisprudence, but I do know that forced speech is a big no-no).  After hearing the facts and reviewing the law, the Court agreed to enjoin that provision of CEEFPA until the case was decided on the merits, or until cert was denied, without discussion.  The plaintiffs did not challenge, and the holding did not address, TSHA.

Although the holding is limited in both time and scope, it might prove to be a big deal, because emergency injunctive relief is an extraordinary measure, granted only if the legal rights at issue are indisputably clear and, even then, sparingly and only in the most critical and exigent circumstances.  Since injunctive relief was granted in the current case, the majority appears to have thought that (i) the legal rights at issue were clear, and (ii) these were critical and exigent circumstances.  That could mean that the Court will not be friendly to state moratoria in the future.

In a written dissent, Breyer objected to the majority ruling because (i) the circumstances are not exigent because the moratorium is due to expire on August 31, (ii) there is no compelled speech because CEEFPA requires only the dissemination of purely factual and uncontroversial information in the context of commercial speech, like a lead paint disclosure in a lease or a Surgeon General’s warning on a pack of cigarettes, (iii) both the TSHA and CEEFPA allow property owners to sue non-payors for money judgments, and (iv) Emergency Rental Assistance Program, or ERAP, funds will be distributed shortly.  I can not speak to the statement about compelled speech, but Breyer’s other statements are like Souter’s discussion of lap dances.  Here’s why:

• August 31 is not a credible deadline.  The eviction moratorium has been extended several times since it was first put into place in March of 2020.  Kathy Hochul has said that she intends to extend it after the accedes to the governor’s mansion.  Nobody really expects it to expire at the end of August;

• Money judgments against non-payors provide little remedy.  A property owner with a judgment against a tenant can execute it in one of two ways, i.e. through an income execution or an asset execution.  Certain types of income, such as social security payments, are exempt from income executions.  Wage garnishments are limited to the lesser of 10% (reduced to 6%, in certain cases) of gross income or 25% of disposable income to the extent that disposable income exceeds 30 times the hourly minimum wage (if disposable income does not exceed 30 times the hourly minimum wage, wages cannot be garnished at all).  A car, the first $89,975 of equity in your primary residence, and a few thousand bucks in cash are protected from asset seizure through the homestead exemption.  Few mobile home park tenants have second cars, million-dollar or second homes, or much liquidity.  They are judgment-proof; and,

• ERAP payments cannot be counted on, and it is disingenuous for the state to defer expiration of the moratorium because of its own shoddy execution of the ERAP program.  I have written about this earlier.

The smart money seems to think that the legislature will extend the moratorium but tweak it to make it constitutional under Chrysafakis .  If that means that non-payment evictions can go ahead subject to tenants raising the affirmative defense of COVID-19 economic hardship, that could be a workable and fair solution.  But the fact that the Court granted emergency injunctive relief in this case might mean that it will narrow moratorium restrictions further.  A field trip for the justices to a few real-world venues, like a strip club, a well-run mobile home park, a police station or maybe even a trial court, could make the next decision unanimous.

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