Virginia Supreme Court Evictions for Failure to Pay Rent, but Not Without Scalding Dissents from Within its Own Bench

As the COVID-19 pandemic presses on with still an unknown end in sight, many governmental bodies—both federal and state—are trying to figure out what to do to keep businesses and people from spiraling any further into a financial disaster. The Supreme Court of Virginia took it upon themselves to help tenants who are unable to pay rent by issuing an ex parte order that suspends the issuance of writs for evictions for failure to pay rent. This order is effective from August 10, 2020, through September 7, 2020. However, the order also includes a scalding dissent from 5 judges on the court's bench.

The first somewhat mild dissent agrees that there is a need to suspend evictions, but says that the judicial branch should not be the one affecting such change. The judicial branch of government needs to remain neutral and should not give preferential treatment to one litigant over another—in this case, giving the upper hand to tenants over landlords.

The second dissent is much more intense, acknowledging that there is a housing emergency, but that it is a socio-economic emergency—not a judicial emergency. Since the wording of the dissent is so poignant, the majority of this article will be in direct quotes.

The dissent begins:

"Legal obligations that exist but cannot be enforced," Justice Holmes once said, "are ghosts that are seen in the law but that are elusive to the grasp." The ex parte order entered today places the legal rights of thousands of Virginia citizens outside the grasp of the judicial system. How long will Virginia courts be closed for the enforcement of landlords' legal rights? Will this order be extended as so many of the other judicial emergency orders have been? No one knows.

(Internal citation omitted.) It then lays into four different reasons why such an order is improper:

1. The court does not have the statutory authority to enter such an order;
2. The order usurps the statutory remedy provided by the state's legislature in addressing the housing crisis.
3. That the order goes against due-process traditions by forgoing the adversarial process (legal briefs, oral arguments, hearing the impacts on those affected by the order).
4. The order ignores constitutional concerns—such as temporary takings and the judicial branch suspending rights provided by the legislative branch—that "may not be legally dispositive, but they should not be summarily dismissed by an ex parte order."

The court notes:

This statute [allowing the courts to close] is meant to ensure that access to the courts is not denied because of missing a deadline or filing requirement during a disaster. Nothing in subsections A or D authorizes closing the courthouse doors to some litigants on the ground that enforcing their legal rights would economically harm other litigants. We obviously have the inherent authority to close a courthouse if it presents a health or safety risk to those who enter it. If a courthouse is on fire, we can order everyone out. We can do the same when the close quarters of a courthouse creates a hotbed of disease. An eviction moratorium, however, has nothing to do with preventing the spread of disease by limiting social interactions in the courthouse, which is the only underlying justification for a judicial emergency order because of COVID-19.

The order continues:

The majority's only response is to speak vaguely about "disadvantaged" tenants who suffer from "certain health conditions." Because of these unspecified health conditions, the majority asserts, tenants who are behind on paying their rent cannot "avail themselves of the court," and thus need protection of Code § 17.1-330. Whatever the stated purpose of the majority order, its only effect is to prevent landlords from exercising their right to "avail themselves of the court." The tenants are not clamoring to go to court to "avail" themselves of their rights or seeking "relief from deadlines, time schedules, or filing requirements." Even if they were, how can the majority so broadly generalize tenants as "disadvantaged" individuals suffering from "certain health conditions"? Do landlords have a due process right to contest the majority's generalization in particular cases? Apparently not. For the duration of this ex parte order, it does not legally matter that a particular tenant is not "disadvantaged" by "certain health conditions." The majority has declared them all to be so - without taking evidence, hearing from witnesses, reading legal briefs, or receiving arguments from any of the thousands of litigants (tenants or landlords) affected by the order.

(Internal citations omitted, emphasis added.)

The order ends with:

The COVID-19 pandemic and its resulting economic fallout are crises of monumental proportions. I do not question my colleagues' motives in issuing this ex parte order. But we must do the right thing, the right way, for the right reason. One out of the three is not enough.

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