Eviction moratoria are increasingly challenged in the courts. On August 12th, the U.S. Supreme Court issued an order partially enjoining enforcement of New York’s COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (CEEFPA). The Court’s order stressed that it applied only to a provision that bars the eviction of tenants who file a form stating they have suffered economic setbacks due to the pandemic, rather than providing evidence in court.

The Supreme Court determined that the self-certification process, which does not allow landlords the opportunity to be heard or to challenge the tenant’s attestation, “violates the Court’s longstanding teaching that ordinarily ‘no man can be a judge in his own case’ consistent with the Due Process Clause.” See Chrysafis v Marks, 21A8, 2021 WL 3560766, at *1 [US Aug. 12, 2021].

The dissenting opinion, issued by Justice Breyer with Justice Sotomayor and Justice Kagan joining, notes that because New York’s moratorium was set to expire on August 31, 2021, the moving party failed to establish an exigent circumstance justifying an injunction. However, given the recent rise in pandemic-related restrictions, state legislatures may well seek to extend eviction moratoria. In light of this recent decision, legislators will have to weigh the public concern for safety against what the Supreme Court declared a violation of landlords’ due process and implement modifications that balance both concerns.

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