Won: The California Judicial Council rescinded its rule, citing the importance of separation of powers.

During the unprecedented COVID-19 crisis, California’s Judicial Council issued an emergency rule that overrode statutory law and an emergency executive order to block virtually all evictions, including for tenants who violate their lease terms or deliberately withhold rent. 

Landlords are as varied as their tenants. Some are companies with multiple rental properties. Others invest their personal savings in real estate as a small business or, like Peggy Christensen, to fund their retirement. Peggy is a retiree who owns an eight-unit apartment building in Mojave. 

Peggy is typical of many landlords and operates on very thin margins. And, like all landlords, Peggy depends on her rental income for the survival of her business. Reliable rental income based on mutually agreed-upon lease terms is critical to sustain a healthy rental housing industry—a necessary component in addressing California’s affordable housing crisis. 

Landlords understand that many people will be unable to pay rent due to shutdown-related job losses. Like Peggy, most work with cash-strapped tenants who might otherwise face eviction during the crisis. Furthermore, local eviction moratoria already forbid landlords in many locations from evicting tenants who are unable to pay rent due to the pandemic crisis or related government orders. 

The Judicial Council’s Emergency Rule 1, however, went much further than these emergency orders. The rule indefinitely suspended landlords’ rights to take legal action against a tenant for virtually any reason. In doing so, it blocked landlords’ access to courts and violated a fundamental right of property owners throughout California. 

The rule created a perverse incentive for all tenants—whether they face financial hardship or not—to refuse to pay their rent during the pandemic, making it even harder for landlords to assist tenants facing true hardship. The rule also forced landlords to prioritize rule-breaking, rent-withholding tenants over respectful rental applicants in need of housing. 

Under the California Constitution, the Judicial Council had no authority to issue the rule in the first place. Under the basic principles of separation of powers, the judiciary cannot make policy or ignore the Legislature’s laws. Emergency Rule 1 did both. 

Even during a crisis, the principles of constitutional government and the rule of law still apply. Represented free of charge by PLF, Peggy and Peter filed a lawsuit in Kern County Superior Court to rein in the Judicial Council’s illegal overreach, restore the rule of law, and allow all California landlords to defend their property rights through proper legal action. Following that lawsuit, the Judicial Council decided to rescind its rule, with the chief justice of California’s Supreme Court saying, “The judicial branch cannot usurp the responsibility of the other two branches on a long-term basis to deal with the myriad impacts of the pandemic.” 

What’s At Stake?

  • 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.
  • 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.

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