District of Columbia v. Towers

Opinion

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DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 21-CV-34, 21-CV-35, 21-CV-36, & 21-CV-37

DISTRICT OF COLUMBIA, APPELLANT,

V.

KAREN TOWERS, ET AL., APPELLEES.

Appeals from the Superior Court of the District of Columbia (LTB-6315-20, LTB-6637-20, LTB 6770-20, LTB-8032-20)

(Hon. Anthony C. Epstein, Trial Judge)

(Argued September 16, 2021 Decided October 7, 2021)

Megan D. Browder, Assistant Attorney General, with whom Karl Racine, Attorney General, Loren L. AliKhan, Solicitor General, Caroline S. Van Zile, Principal Deputy Solicitor General, and Ashwin P. Phatak, Deputy Solicitor General, were on the brief, for appellant.

Ian A. Williams, with whom Gary D. Wright, was on the brief, for appellee Borger Management, Inc.

Alexander Gallo, pro se.

Amanda Korber, with whom Rebecca Lindhurst, Beth Mellen, Lori Leibowitz, Gabriella Lewis-White, Gwendolyn M. Washington, Nathaniel Aquino, and Lucy Newton were on the brief, for Bread for the City, Legal Aid Society of the District of Columbia, Neighborhood Legal Services Program, The D.C. Bar Pro Bono 2

Center, Legal Counsel for the Elderly, and Rising for Justice, amici curiae, in support of appellant.

Before GLICKMAN, EASTERLY, and DEAHL, Associate Judges.

GLICKMAN, Associate Judge: These consolidated appeals are from the

Superior Court’s declaratory judgment that the District of Columbia’s statutory

moratorium on filing for eviction during the COVID-19 public health emergency

and for a limited period thereafter violates property owners’ constitutional right to

access the courts. While the basis of the constitutional right of access to the courts

remains unsettled, the Supreme Court has held that the right “assures that no person

will be denied the opportunity to present to the judiciary allegations concerning

violations of fundamental constitutional rights.” 1

Here, property owners argue that their right of access to the courts is violated

when they are deprived of an expedited process for repossessing property through

an eviction action. The Superior Court agreed, declaring that the filing moratorium

“directly implicates property owners’ constitutionally based interest in expeditious

resolution of eviction cases.” Because there is no constitutional right to eviction on

a specific timetable, much less a fundamental one, we conclude that the temporary

filing moratorium does not burden the right of access to the courts. The filing

1 Wolff v. McDonnell, 418 U.S. 539, 579 (1974). 3

moratorium perhaps could be challenged on other grounds, but because the Superior

Court’s judgment rested solely on its holding that the filing moratorium violates the

right of access to the courts, our focus on appeal is similarly limited.

I.

On March 11, 2020, the Mayor of the District of Columbia, pursuant to her

authority under the Home Rule Act, 2 issued a declaration of a public health

emergency in response to the COVID-19 pandemic. 3 Soon after, on March 17, 2020,

the Council of the District of Columbia enacted a variety of measures to prevent the

spread of COVID-19 and protect District residents. 4 Included among these measures

was a moratorium on evictions “[d]uring a period of time for which the Mayor has

declared a public health emergency” (“eviction moratorium”). 5 As the pandemic

continued throughout the spring, the Mayor and the Council acted again. On May

2 D.C. Code § 1-201.01 et seq. (2016 Repl.). 3 Executive Office of the Mayor, Mayor’s Order 2020-45: Declaration of Public Health Emergency: Coronavirus (COVID-19) (March 11, 2020), https://mayor.dc.gov/release/mayor%E2%80%99s-order-2020-045-declaration- public-health-emergency-coronavirus-covid-19; https://perma.cc/JMP9-LARN. 4 D.C. Act 23-247 § 308, 67 D.C. Reg. 3093 (Mar. 17, 2020); D.C. Code § 42-3505.01(k)(3) (2020 Repl.). 5 Id. 4

13, 2020, the Mayor signed the Coronavirus Omnibus Emergency Amendment Act

of 2020. 6 This emergency legislation prohibited landlords from filing actions for

possession of real property pursuant to D.C. Code § 16-1501 (2012 Repl.) during the

public health emergency and for sixty days thereafter (“filing moratorium”), and

applied retroactively as of March 11, 2020. 7

In July 2020, the Superior Court began issuing orders in all filed possession

cases to show cause why the cases should not be dismissed. On July 28, 2020, Judge

Epstein was assigned to adjudicate all common questions of law relating to the filing

moratorium for eviction cases filed on or after March 11, 2020. The trial court

selected multiple cases filed between March and September 2020 to consider facial

challenges to the legality of the filing moratorium, including whether the filing

moratorium violated the constitutional rights of landlords by restricting their access

to the courts. In November 2020, the District intervened to defend the

constitutionality of the law. A group of legal service providers, appearing as amici,

also supported the moratorium.

6 D.C. Act 23-317, 67 D.C. Reg. 5235 (May 13, 2020). 7 Id. 5

On December 16, 2020, the Superior Court held that the moratorium on

eviction filings for the duration of the public health emergency, plus sixty days

thereafter, was unconstitutional. Specifically, it held that the moratorium infringed

on property owners’ fundamental right of access to the courts because “[a] landlord’s

interest in summary resolution of its claims against a tenant has a constitutional

basis.” Applying intermediate scrutiny, the court concluded that the filing

moratorium did not survive such review. Accordingly, the court issued a declaratory

judgment that the filing moratorium was unconstitutional and directed the clerk to

“schedule initial hearings in any pending case filed on or after March 11, 2020 as

soon as reasonably possible.”

The District of Columbia timely appealed and moved for a stay pending

appeal. On May 13, 2021, this court granted the District’s motion. 8 The panel

concluded that: (1) the District was likely to succeed on appeal because the filing

moratorium did not implicate the right of access to the courts, 9 (2) the District had

8 District of Columbia v. Towers, 250 A.3d 1048, 1056 (D.C. 2021). 9 Id. at 1054-56. 6

demonstrated a risk of irreparable harm to tenants without a stay, 10 (3) the

countervailing harm to property owners was not irreparable, 11 and (4) the public

interest favored a stay because the filing moratorium was a component of the

Council’s comprehensive response to a public health emergency. 12

Approximately two months later, on July 24, 2021, the Mayor signed an

executive order ending the public health emergency as of July 25, 2021, and signed

into law D.C. Act 24-125, the Public Emergency Extension and Eviction and Utility

Moratorium Phasing Emergency Amendment Act of 2021.13 The legislation phases

out many of the tenant protections enacted during the COVID-19 public health

10 Id. at 1056-57 (citing Akassy v. William Penn Apartments Ltd. P’ship, 891 A.2d 291, 309 (D.C. 2006)) (“[T]he upheaval of a tenant from his home, even if he can find alternative housing, creates a cognizable irreparable injury.”). 11 Id. at 1059 (“Mere injuries, however substantial, in terms of money. . . necessarily expended in the absence of a stay, are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim o[f] irreparable harm.” (quoting Zirkle v. District of Columbia, 830 A.2d 1250, 1257 (D.C. 2003))). 12 Id. (“The filing moratorium is one component of the Council’s comprehensive response to the COVID-19 public health emergency and its financial fallout. While the courts have an important role to play in ensuring that the District does not wield its police powers in an unconstitutional or illegal manner, we are not legislators elected to make difficult policy decisions with potentially life or death consequences.”). 13 D.C. Act 24-125, 68 D.C. Reg. 7342 (July 30, 2021). 7

emergency. For example, as of August 24, 2021, property owners have been

permitted to file eviction cases in Superior Court when a tenant’s continuing

presence is a threat to health and safety or when the tenant has willfully or wantonly

caused significant damage to the property. 14 As of October 12, 2021, landlords may

file eviction actions for nonpayment of rent, provided the tenant owes at least $600

in rent, and the landlord has applied for relief through the District’s rental assistance

program Stronger Together by Assisting You (STAY) DC. 15 Starting January 1,

2022, landlords may file eviction actions for any of the ten lawful bases for eviction

in the District. 16

II.

The Superior Court held that “[t]he United States Constitution protects the

right of property owners to go to court to regain possession of their property in a

summary proceeding.” Finding that the District’s filing moratorium “den[ied]

property owners their day in court for an extended and indefinite period,” the court

agreed with appellees that their right of access to the court was violated when they

14 See D.C. Code § 16-1501(c)(1). 15 Id. 16 Id.; D.C. Code § 42-3505.01 (2020 Repl.). 8

were prevented from filing complaints for possession during the COVID-19 health

emergency and for sixty days after. We review a challenge to the constitutionality

of a statute de novo. 17

Though the Supreme Court has identified the right of access to courts as

stemming from multiple sources, it has largely grounded its analysis of that right in

the Due Process Clauses of the Fifth and Fourteenth Amendments. 18 When

considering a right of access claim in Boddie v. Connecticut, the Supreme Court

cited due process as requiring that “persons forced to settle their claims of right and

duty through the judicial process . . . be given a meaningful opportunity to be

heard.” 19 There, the Court held that the due process right of access to the courts was

violated where Connecticut’s filing fees for divorce proceedings completely

prevented indigent plaintiffs from exercising a fundamental right, as access to the

17 In re Warner, 905 A.2d 233, 237-38 (D.C. 2006). 18 Christopher v. Harbury, 536 U.S. 403, 415 n.12 (2002) (citing Walters v. National Assn. of Radiation Survivors, 473 U.S. 305, 335 (1985); Wolff v. McDonnell, 418 U.S. 539, 576 (1974); Boddie v. Connecticut, 401 U.S. 371, 380-81 780 (1971)); see also Ortwein v. Schwab, 410 U.S. 656, 660 n.5 (1973) (“Appellants also claim a violation of their First Amendment right to petition for redress. Our discussion of the Due Process Clause, however, demonstrates that appellants’ rights under the First Amendment have been fully satisfied.”). 19 401 U.S. at 377. 9

courts was the “exclusive precondition to the adjustment of a fundamental human

relationship.” 20

Two years later, in United States v. Kras, the Supreme Court held that the

right of access to the courts was not implicated when the underlying claim did not

involve a fundamental interest. 21 The interest at stake in Kras was the elimination

of debt through bankruptcy, which did “not rise to the same constitutional level,” as

claims for divorce. 22 Noting that the denial of access to the courts in Boddie directly

affected interests of fundamental constitutional importance, namely, the marital

relationship and the associational interests surrounding it, the Court concluded Kras

stood in a materially different posture because “no fundamental interest. . . is gained

or lost depending on the availability of a discharge in bankruptcy.” 23

20 Id. at 383. 21 409 U.S. 434, 445 (1973).

Id. at 444. See also Ortwein, 410 U.S. at 659 (holding appellants were not 22

deprived of due process by state appellate court filing fee, as the increase in welfare payments sought by them had less constitutional significance than the interest of appellants in Boddie). 23 Kras, 409 U.S. at 445. 10

In 1975, the Supreme Court again distinguished Boddie where an Iowa statute

required one year of residency in the state as a precondition to filing for divorce. 24

While the filing fees in Connecticut served to “exclude forever a certain segment of

the population from obtaining a divorce,” 25 the right of access to the courts was not

similarly violated where the “claim [wa]s not total deprivation, as in Boddie, but

only delay.” 26 Instead, where appellant “would eventually qualify for the same sort

of adjudication” sought, delayed access to the courts was constitutional, even where

a fundamental right was involved. 27

Since then, the Supreme Court has further clarified that the right of access to

the courts “is ancillary to the underlying claim,” such that “the very point of

recognizing any access claim is to provide some effective vindication for a separate

and distinct right to seek judicial relief for some wrong.” 28 Taken together, this line

24 Sosna v. Iowa, 419 U.S. 393, 406 (1975). 25 Id. at 409; see also Boddie, 401 U.S. at 372-73 (“The affidavits in the record establish that appellants’ welfare income in each instance barely suffice to meet the costs of the daily essentials of life and includes no allotment that could be budgeted for the expense to gain access to the courts in order to obtain a divorce.”). 26 Sosna, 419 U.S. at 410. 27 Id. at 406. 28 Harbury, 536 U.S. at 414-15. 11

of cases reinforces that the right of access to the courts serves to “assure[] that no

person will be denied the opportunity to present to the judiciary allegations

concerning violations of fundamental constitutional rights.” 29

Appellee Borger Management argues the filing moratorium violates a

fundamental right under the Constitution because it abridges private parties’ right to

contract. This argument might have more force if the moratorium totally deprived

property owners of access to the courts, instead of only temporarily delaying such

access. But the Supreme Court previously has upheld legislation temporarily

(though significantly) delaying tenant evictions during an emergency, stating, “[a]

limit in time, to tide over a passing trouble, well may justify a law that could not be

upheld as a permanent change.” 30 The District’s temporary filing moratorium does

not eliminate tenants’ lease obligations, including the payment of rent, or alter

property owners’ title to their property. After the moratorium is lifted, property

owners will be able to file for eviction and pursue related claims. Therefore, the

filing moratorium involves no abrogation of contracts or deprivation of the ability to

file for eviction.

29 Wolff, 418 U.S. at 579. 30 Block v. Hirsh, 256 U.S. 135, 157 (1921) (upholding against constitutional challenge a two-year law prohibiting landlords from evicting tenants after lease expiration during a housing shortage and when lease obligations remained in effect). 12

As we have noted, the filing moratorium will soon end. By January 1, 2022,

all property owners will be able to file suit for possession, with many able to file for

possession before then based on non-payment of rent, property damage, or public

safety concerns. 31 Just like the emergency tolling of judicial deadlines at issue in

Sharps v. United States, the premise of the filing moratorium was that proceedings

would resume in the foreseeable future, and resumption is at hand. 32 And although

appellees complain that they have been deprived, in the meantime, of some interim

relief in the form of protective orders requiring payment of rent into the registry of

the court, the District has put in place a different mechanism for landlords to obtain

interim relief in the form of rental assistance programs, most notably STAY DC. 33

STAY DC allows both renters and property owners to apply for up to twelve months

31 D.C. Code § 16-1501(c)(1). 32 Sharps v. United States, 246 A.3d 1141, 1155 (D.C. 2021) (“Emergency tolling ends when the emergency ends, or is overcome. Even if there may be uncertainty as to when that will happen, the statutory premise is that it will happen in the foreseeable future and that trials will then resume.”). 33 By contrast, the Superior Court concluded that “[d]uring the extended period of the filing moratorium, landlords are completely deprived of the ability to obtain any interim protection whatsoever.” 13

of past due rent and up to six months of future rent, and over $350 million has been

allocated to the program to mitigate rental housing debt. 34

III.

For the foregoing reasons, we do not find a fundamental “constitutional right

to evictions on a particular timetable” to support appellees’ claim their right of access

to the courts is violated by the District’s filing moratorium. 35 We reverse the

judgment of the Superior Court.

34 Press Release, Executive Office of the Mayor, Mayor Bowser Announces $350 Million Rent and Utility Assistance Program for DC Residents (April 12, 2021), https://mayor.dc.gov/release/mayor-bowser-announces-350-million-rent- and-utility-assistance-program-dc-residents; https://perma.cc/ZSA8-99P3. 35 Towers, 250 A.3d at 1056.