The front story in the mainstream media regarding Gov. Newsom’s ban on residential evictions — Coronavirus Emergency Executive Order N-28-20 — is that his appointed Judicial Council has extended the ban past the initial 90 days until August 3.
However, there is no likelihood the ban will be terminated before the November election, given the state-caused increase in unemployment hovering around 20 percent (602,600 new unemployed) as of May in L.A. County. The unemployment rate last May was 4.5 percent in L.A. County. But the backstory to the governor’s eviction ban has not been told.
On June 10, the California Judicial Council recommended the eviction ban be lifted. But the head of the Council – state supreme court chief justice Tani G. Cantil-Sakauye – refused the recommendation of the Council to let the eviction ban expire. Judge Cantil-Sakauye’s decision was based on: “The judicial branch cannot usurp the responsibility of the other two branches to deal with the myriad impacts of the pandemic.”
Sakauye was persuaded by low income housing advocates and a UCLA study that claimed letting the order expire would result in mass homelessness. But did Cantil-Sakauye have constitutional authority to do so?
The UCLA Luskin Institute on Inequality and Democracy released an exaggerated report on May 28 – UD Day: Impending Evictions and Homelessness in Los Angeles, estimating 365,000 residential evictions in L.A. County alone resulting from coronavirus shutdowns. UD means Unlawful Detainer or eviction. That would reflect about 60 percent of the newly unemployed in LA County.
However, according to the Santa Monica Lookout, only about 5 percent of tenants were refusing to pay rent or were not paying full rent as of April. Moreover, the UCLA study ignored that about $5.3 billion in unemployment benefits was processed in California by May 2020.
Apparently, there was no consideration of the moral hazard that allowing tenants a free ride on rent for, say, six months will only create a worse hardship. That six months back rent will become due and payable, either at once or repaid over time.
Here is another California overkill policy, like the coronavirus shutdowns, where because of a few rent non-payers, who have powerful political symbolism, all landlords must suffer, and some may lose their properties. Landlords live off of slim margins with overall rates of return in California of about 3 percent per year.
Who Is the Judicial Council?
This raises the question: Who is the Judicial Council that recommended the eviction ban be repealed?
The Judicial Council is a 21-person panel composed of trial judges (10), state bar representatives (4), legislative representatives (2), appeals court judges (3) and the state supreme court (2). The Council has been delegated the responsibility to rule on the legal aspects of Gov. Gavin Newsom’s emergency orders related to the so-called coronavirus epidemic.
Thirteen of the active members of the Judicial Council were appointed by Republican governors, including Cantil-Sakauye, who recently switched her party affiliation from Republican to Independent over her apparent feminist opposition to confirmation of Brett Kavanaugh as a U.S. Supreme Court Justice. The Judicial Council is apparently the only statewide government body that has a majority of Republican representation, although judges typically abstain from partiality.
The Council’s Constitutional authority extends only to purely administrative policy, not public policy matters. But, in this case the governor has delegated legal interpretation and policy advice of his emergency orders to the Judicial Council.
Chief Justice Cantil-Sakauye was arguably acting not in the role of legal umpire in her decision to allow the eviction ban to continue, but stated she was influenced by policy consequences. And that is not the role of a chief justice nor the head of the Judicial Council. Her role is to balance the three powers of government – executive, legislative and judicial – but she was arguably remiss in doing so.
If Cantil-Sakauye had abstained, the Legislature would have had to act on the matter anyway. Why didn’t Sakauye just refuse to allow her Judicial Council to render policy decisions on this matter? Now that she has crossed that invisible separation of powers line, how does she credibly issue any decisions in her role as chief justice?
Constitutional Legal Challenge
A lawsuit filed June 15 by the Pacific Legal Foundation (PLF) – Christensen vs. California Judicial Council – on behalf of two landlords challenges the Judicial Council’s authority to continue the eviction ban:
- “The California Constitution’s separation of powers prevents government agencies like the California Judicial Council from overriding the legislature and governor to take the law into its own hands and make social policy.”
- “Government cannot deprive landlords of their right to evict tenants who are able to pay rent yet refuse to do so, crippling their businesses and handicapping their ability to help tenants who face financial hardship.”
PLF Attorney Michael Poon said about the case: “This is not only grotesque policy, it is unconstitutional. Under the American system of separation of powers, the judiciary may not ignore the law or make it. This rule does both.”
So, the back story is that Gov. Newsom’s delegation of implementation of the eviction ban to the Judicial Council is allegedly unconstitutional. But will this case take longer than the November elections to adjudicate? And how could the California Supreme Court rule on this issue now that they have compromised themselves? And could the U.S. Supreme Court act in a timely way or would they side-step the issue?
The effort to recall Gov. Newsom, not coincidentally, started to gain momentum around June 28.
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