Thomas MacMillan file photo
Judge Bolden: Will restarting evictions worsen the pandemic?
If the courts overturn the state’s eviction moratorium, will Connecticut see a surge in Covid-19 cases?
A federal judge raised that concern during the first public hearing of a landlord-led lawsuit trying to restart evictions.
U.S. District of Connecticut Judge Victor Bolden, who formerly served as New Haven government’s top attorney, oversaw that hour-long virtual hearing Wednesday via the Zoom videoconferencing platform.
The case in question is Auracle Homes LLC; FD Management LLC; Buckley Farms LLC; Orange Capitol LLC; 216 East Main Street Meriden LLC; BD Property Holdings LLC; Prime Management LLC; and Haberfeld Enterprises LLC v. Ned Lamont. Two of the plaintiff holding companies are co-owned by the New Haven-based rental property owners David Candelora and Ben Eastman.
During Wednesday’s hearing, plaintiffs’ attorney and Wallingford Republican State Rep. Craig Fishbein fleshed out his clients’ core complaints with Gov. Ned Lamont’s emergency executive order that prohibits all non-payment of rent evictions through at least Aug. 22.
Fishbein (pictured) argued that the executive action violates landlords’ Constitutional rights to due process, equal protection under the law, and private contract.
He said that the eviction pause represents a “fiscal taking” of the landlords’ properties, as the governor is “forcing landlords to house people without authority to be there” because they have not paid rent.
And he argued that the governor overstepped his state sanctioned-authority, even during a civil preparedness emergency, when he effectively ordered a closure of one part of the judicial branch — that is, housing court.
“The governor treats those rights like a mere suggestion or idea,” Fishbein said about Lamont’s alleged Constitutional violations. “That is not fair. And, most importantly, that is not the purpose of our Constitution.”
He said that the current executive orders as implemented deprive landlords of a critical form of legal relief that they need access to in order to continue to use their property to provide shelter in exchange for rent.
“The governor is forcing our clients to house people who have not complied with the rental agreement,” Fishbein said.
“We’re In The Middle Of A Pandemic”
State Assistant Attorney General Maria Rodriguez took up the cause for the defense. She argued that the federal court lacks jurisdiction for the question of whether or not Lamont violated any state statutes. That’s a claim for state court, not federal court, she said.
As for the alleged federal Constitutional allegations, Rodriguez said the plaintiffs have failed to meet the pleadings requirement of showing that they have a “likelihood of success on the merits” when arguing for a temporary restraining order to be placed on the eviction moratorium.
While Fishbein hardly mentioned the current Covid-19 pandemic at all during his half-hour opening statement and subsequent back-and-forth with Judge Bolden, Rodriguez emphasized Lamont’s responsibility to do his best to protect the people of Connecticut from the exceptional public health and economic threat posed by the novel coronavirus.
“As this court is aware,” she said, “we’re in the middle of a pandemic.”
Connecticut has over 48,000 confirmed cases and over 4,000 related deaths, she said. And the state’s unemployment numbers skyrocketed from 3.8 percent to 19 percent in three months.
“Federal courts are acknowledging in their decisions that Covid is an extremely contagious virus and that governments need to respond,” she said. This pandemic has “had catastrophic implications” for Connecticut — and the country, and world — so far.
Rodriguez argued that the eviction moratorium is just one tool that the governor has used to try to protect the health and well-being of the people of Connecticut.
She said that allowing evictions to continue during this moment of crisis could result in people becoming homeless, staying in homeless shelters, or moving in to denser dwellings occupied by more people.
“We know that the more condensed the population is, the more likely the virus will spread,” she said.
In order to help make sure the rent is paid, Rodriguez said, the governor has set aside $10 million for direct payments to landlords for tenants adversely affected by Covid-19. He has also announced plans to set aside another $5 million to help tenants already in the process of being evicted.
“The bottom line is that not all businesses have been allowed to be reopened. We have not returned to normal,” she said. “We do not want to go back to March. We’re trying to maintain the quarantine.”
“Doing Quite Well In Comparison”
Bolden directed most of his queries Wednesday towards the plaintiffs’ attorney. He asked Fishbein to explain why the judicial branch was not represented among the defense, as that co-equal branch of government appears most responsible for the actions of the courts. He asked why a claim about state statute-granted gubernatorial authority should be heard by a federal court.
And he asked about what the consequences may be of allowing for a resumption of non-payment of rent evictions just as the virus is surging again throughout the country — and as Connecticut, so far, appears to be avoiding that trend.
Throughout the country, Bolden said, “we have a number of states with rising instances of Covid-19 outbreaks and a host of other public health effects as a result. In contrast, we have the State of Connecticut, which appears be doing quite well in comparison to just about every other state in the country.”
His question for the plaintiffs: Given the balance of equities of public interest, and “given the ongoing nature of the pandemic’s rising cases elsewhere around the country and some stability in Connecticut, what would be the case then for the relief you’re seeking, which could lead to greater density and potentially the rise of the spread of Covid-19” in the Nutmeg State?
According to the New York Times, Connecticut currently has a seven-day average of 84 newly reported Covid-19 cases — down from a seven-day average high of over 1,100 on April 22.
Fishbein replied that that line of thinking is “speculative.”
“One would have to assume that the effect of this order is arguably related to better results in Connecticut,” he continued. He said there is no definitive proof of that — especially considering that a host of other states have implemented eviction moratoriums, and “their numbers are different” than Connecticut’s.
Fishbein also argued that allowing for the eviction process to resume in Connecticut court’s wouldn’t necessarily result in people ending up on the streets. After all, he said, a tenant who has received an eviction order can always appeal to the court for a three-month stay.
At the end of the hour, Bolden gave Fishbein and the plaintiffs two weeks to respond to an amicus brief filed by a host of legal aid societies — including New Haven Legal Assistance Association — in support of the state and maintaining the eviction moratorium. The judge committed to issuing a ruling in the case soon after that Aug. 5 response deadline for the plaintiffs.
In the amicus filing, the legal aid attorneys offer their own perspective on the concern that Bolden raised during Wedensday’s hearing.
After families are evicted and forced out of their homes, they wrote, “many have no choice but to enter the state’s emergency shelter system, ‘double-up’ in overcrowded apartments, or sleep outside in encampments — setting the stage for a surge of infections. Through bitter experience, we have learned that thee types of congregate living settings are prime locations for the spread of COVID-19.”
They wrote that state government a network of homeless shelters quickly moved 60 percent of the state’s shelter population into hotels in the early weeks of the pandemic. They said the state is now undertaking a $14 million campaign to house 1,800 individuals more permanently.
“A new wave of evictions would reverse these efforts and lead to new spikes in infections.”