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Lawsuit accuses California of denying tenants due process in Emergency Rental Assistance Program

Western Center senior attorney Madeline Howard was on KPFA Radio in the Bay Area to discuss the lawsuit Western Center and our partners filed on behalf of tenant groups, accusing California’s Department of Housing and Community Development of denying Californians due process in the application process for the state’s Emergency Rental Assistance Program (ERAP). As of June 1, 2022, the department denied 31% of ERAP rental assistance applications without meaningful explanation or a transparent appeals process.

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Victory for COVID Tenant Protections in Los Angeles

Last Friday, Judge Dean Pregerson denied the Apartment Association of Greater Los Angeles’ motion for preliminary injunction to stop enforcement of the City of Los Angeles’ COVID-related tenant protections.

The Apartment Association filed a lawsuit in federal court to challenge, on constitutional grounds, the city’s ability to enact COVID-related tenant protections: one barring evictions for nonpayment of rent or certain lease violations for COVID-related reasons during the local emergency period, which is ongoing, and one barring rent increases for rent control units during the local emergency period. Western Center, along with Public Counsel, The Public Interest Law Project, and Susman Godfrey LLP, represent two tenants’ rights organizations, ACCE Action and Strategic Action for a Just Economy (SAJE), who successfully sought to intervene in the lawsuit to help defend the ordinances. Since the lawsuit was filed, California enacted AB 3088, which overlaps significantly with the eviction protection ordinance. While AB 3088 goes further to protect tenants in some ways, the city’s ordinance goes further in others.

In September, the Apartment Association filed a motion for preliminary injunction, asking the court to suspend the enforcement of the two ordinances while the lawsuit is pending. It argued that the Association was likely to succeed on the merits of the case, and that landlords would suffer irreparable harm if the ordinances stayed in place. The Association relied on its claim that the ordinances violate the US Constitution’s Contract Clause, which forbids the state (or local governments) from making laws that substantially impair contracts without a reasonable basis for making those laws, and a claim that the ordinances violated landlords’ due process rights under the Fourteenth Amendment.

The court denied the Association’s motion, stating that “even though the court is persuaded that [the Apartment Association] will be able to show that the Moratorium substantially impairs landlords’ contract rights, [the Apartment Association] is not likely to succeed on its Contract Clause claim because any such impairment appears, at this stage, to be eminently reasonable under the extraordinary circumstances.” The court also disposed of the Association’s Due Process claim in a footnote: “Substantive due process provides no basis for overturning validly enacted state statutes unless they are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.”

The court, noting that the Apartment Association had basically conceded that the state law is constitutional, further stated, “[The Apartment Association] has failed to show that the preliminary injunction it seeks will prevent the harms it alleges. The Moratorium represents but one layer of protection Los Angeles renters currently enjoy. California state authorities have not remained idle in the face of the COVID crisis. In late August, the state legislature passed Assembly Bill 3088, the COVID-19 Tenant Rights Act.”

While the court upheld the City of LA’s ordinance, and found that landlord interests must yield to the “vital interests of the public as a whole,” in his ruling, Judge Pregerson urged the federal government to act in order to avoid the burgeoning “war” between landlords and tenants, brought on by the extraordinary circumstances of the pandemic:

This Court will defer to the judgment of local authorities, who have the unenviable task of weighing all of the relevant considerations and choosing the least of all possible evils. It bears repeating, however, that the COVID-19 crisis is national in scope, and demands a national response.

Landlords and tenants alike are victims of the virus, both literally and economically. Tenants should not have to live in fear of eviction because of a calamity that was not of their making. Landlords should not have to live in fear of losing their hard-earned investments in our community because of a calamity that was not of their making. Our citizens should not have to fight each other to avoid economic and personal ruin.

Courts are an imperfect tool to resolve such conflicts. So too are ordinances and statutes that shift economic burdens from one group to another. The court respectfully implores our lawmakers to treat this calamity with the attention it deserves. It is, but for the shooting, a war in every real sense. Hundreds of thousands of tenants pitted against tens of thousands of landlords – that is the tragedy that brings us here. It is the court’s reverent hope, expressed with great respect for the magnitude of the task at hand, that our leaders, and not the courts, lead us to a speedy and fair solution.

This is an important win in the fight to keep not only Los Angeles renters housed, but also renters throughout California, as it affirms the importance of people staying in their homes in the midst of the ongoing pandemic, and what looks like another wave of shutdowns. We join Judge Pregerson in the hope that we will see more substantial solutions from the federal government in the coming weeks and months.

For more about the case, ACCE and SAJE’s joint press release can be read here.

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