Petition for Writ of Certiorari — Alexander Gallo, Petitioner v. District of Columbia

APPENDIX

Appendix Table of Contents

Appendix A

District of Columbia v. Towers, et al.,

21-CV-34 (D.C. Oct. 7, 2021)..............

la

Appendix B

Order, Gallo Holdings LLC - Series 2, et al v.

Andre Hopkins, Case No. 2020 LTB 008032

(D.C. Super. Ct. Dec. 16, 2020)..........................

13a

Appendix C

Statutes

62a

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, LTB8032-20)

(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.

la

!'

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 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

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

2a

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

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

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 (COVID19)

(March

2020),

11,

https://mavor.dc.gov/release/mavor%E2%80%99s-order-2020045-declarationpublic-health-emergencv-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.).

6/d.

3a

pandemic continued throughout the spring, the Mayor

and the Council acted again. On May 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 toD.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.

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

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

t Id.

4a

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 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

8 District of Columbia v. Towers, 250 A.3d 1048, 1056 (D.C. 2021).

9 Id. at 1054-56.

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 off]

irreparable harm.” (quoting Zirkle v. District of Columbia, 830

A.2d 1250, 1257 (D.C. 2003))).

5a

comprehensive

emergency.12

response

to

a

public

health

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

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

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).

14 See D.C. Code § 16-1501(c)(l).

15 Id.

6a

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

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

16 Id.; D.C. Code § 42-3505,01 (2020 Repl.).

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 (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.”).

7a

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

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

is 401 U.S. at 377.

20 Id. at 383.

21 409 U.S. 434, 445 (1973).

22 Id. at 444. See also Ortwein, 410 U.S. at 659 (holding

appellants were not 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).

8a

interest. . . is gained or lost depending on the

availability of a discharge in bankruptcy.”23

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 of cases reinforces that the right of

access to the courts serves to “assure Q that no person

23 Kras, 409 U.S. at 445.

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.

9a

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.

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

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 obhgations remained in effect).

10a

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 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

31 D.C. Code § 16-1501(c)(l).

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.”

34 Press Release, Executive Office of the Mayor, Mayor Bowser

Announces $350 Million Rent and Utility Assistance Program for

(April

2021),

DC

Residents

12,

https://mavor.dc.gov/release/mavor-bowser-announces-350million-rentand-utilitv-assistance-program-dc-residents:

https://perma.cc/ZSA8-99P3.

11a

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.

35 Towers, 250 A.3d at 1056.

12a

SUPERIOR COURT OF THE

DISTRICT OF COLUMBIA

Civil Division

Filed 12/16/2020

\

Borger Management, Inc.

v.

Abel Hernandez-Cruz, et al

Karen Towers

v.

Matt Taley

Krishna McArthur

v.

Kendra Bryant

Gallo Holdings LLC — Series 2

v.

Andre Hopkins

Urban City Management

v.

Donna Butler

Case No. 2020 LTB

006637

Case No. 2020 LTB

006315

Case No. 2020 LTB

006770

Case No. 2020 LTB

008032

Case No. 2020 LTB

008107

ORDER

The District of Columbia has imposed a

statutory moratorium that prohibits property owners

from filing eviction cases until 60 days after the end of

the current public health emergency caused by COVID19. The United States Constitution protects the right

of property owners to go to court to regain possession of

their property in a summary proceeding. The filing

13a

moratorium limits this right by denying property

owners their day in court for an extended and indefinite

period. The District therefore has a demanding burden

to demonstrate a reasonable fit and proportionality

between the legislature’s goals and the means it chose

to achieve these goals. Because the District has not

carried its burden, the filing moratorium does not pass

constitutional muster.

Ending the filing moratorium will not directly

result in any evictions during the public health

emergency. The District has imposed a moratorium on

evictions separate from the moratorium on the filing of

eviction cases, and the property owners do not

challenge the constitutionality of the moratorium on

evictions themselves,

The separate eviction

moratorium means that even if landlords could file an

eviction case and obtain a judgment for possession,

they could not use the judgment to evict the tenant

from the property during the public health emergency.

Fewer than 500 eviction cases filed during the

moratorium are currently pending. The moratorium on

actual evictions during the public health emergency

means that the defendants in these cases will not face

an eviction until the emergency ends, unless they fall

within one of the narrow exceptions to the eviction

moratorium that the Council made and that have never

been invoked.

Nor will ending the filing moratorium

automatically result in a flood of new eviction cases.

D.C. law prohibits landlords from issuing, until 60 days

after the public health emergency ends, the notices that

they must provide 30 days before they file an eviction

case. In addition, the District takes the position that

even if landlords can issue the required pre-suit notice

and then file an eviction case, they cannot serve the

14a

court papers on tenants until 60 days after the public

health emergency ends. The only short-term impact of

the Court’s ruling is that the Court will schedule a

hearing in these cases as soon as it reasonably can,

property owners will have to try to prove their case, and

defendants will be able to raise any defense or seek any

relief to which they are entitled.

The District and legal services providers argue

that the filing moratorium advances the government

interest of containing the pandemic. “Stemming the

spread of COVID-19 is unquestionably a compelling

interest.” Roman Catholic Diocese v. Cuomo, 208

L.Ed.2d 206, 209 (2020) (per curiam). The Court also

agrees that the legislature could reasonably conclude

that evictions increase the risk of spreading COVID-19

because a significant percentage of people who are

evicted end up homeless or in more crowded conditions

where the risk of infection, illness, and death are

higher. The Centers for Disease Control & Prevention

(“CDC”) concluded that an eviction moratorium “can be

an effective public health measure utilized to prevent

the spread of communicable disease.” CDC, Temporary

Halt in Residential Evictions To Prevent the Further

Spread of COVID-19, 85 Fed. Reg. 55292, 55294 (Sep.

4, 2020); see Amicus Brief at 3-4.1 The issue here,

1 Amici state that “as the CDC has recognized, a moratorium on

eviction filings has a real and substantial relation to the public

health, meeting the first test under Jacobson.” Amicus Brief at

15. However, as amici acknowledged at the November 30 hearing,

and as the CDC publication cited by amici and quoted in the text

states, the CDC found only that eviction moratoriums (and not

eviction filing moratoriums) protect the public health. When the

CDC adopted a moratorium on evictions that applied only to

evictions for non-payment of rent and only to tenants who would

become homeless or forced to live in close quarters if they were

evicted, it made clear that this limited moratorium was not “to

15a

however, is whether the moratorium on the filing of

eviction cases promotes this compelling interest

enough to justify the substantial restriction on

property owners’ access to the courts during a time

when evictions themselves are prohibited. The District

has not shown that it does.2

The Court is acutely aware of the plight of

thousands of families in our community who have

struggled and continue to struggle economically and

emotionally because they lost their jobs or their hours

were reduced because of the pandemic. Because the

District has a serious shortage of affordable housing,

many families had a hard time making rent and

mortgage payments even before the pandemic hit.

These families may no longer be able to afford the

payments to which they committed in different times,

and they may not have a realistic prospect of coming up

with the money for payments that they missed. For

these families, both the eviction and filing moratoriums

do not solve the underlying problem — the moratoriums

only delay the day of reckoning that they face. The

Court hopes that the legislative and executive branches

of government will find ways to enable the families to

prevent landlords from starting eviction proceedings, provided

that the actual eviction of a covered person for non-payment of

rent does NOT take place during the period of the Order.” See

Brown v. Azar, 2020 U.S. Dist. LEXIS 201475, at *46 (N.D. Ga.

Oct. 29, 2020) (emphasis added by the court).

2 That a moratorium furthers a compelling government interest

does not necessarily resolve other constitutional issues. For

example, if the filing or eviction moratorium effects a taking of

property (an issue that the Court does not decide), the fact that

the taking is for a compelling public purpose does not diminish the

property owner’s right to just compensation from the District

under the Takings Clause.

16a

keep or find affordable housing after the current public

health emergency ends.

I.

BACKGROUND

A.

Statutory provisions

On March 11, 2020, Mayor Muriel Bowser

declared a public health emergency in the District of

Columbia due to the COVID-19 pandemic. The Mayor

subsequently exercised her statutory authority to

extend the emergency in stages, most recently until

December 31, 2020. See Mayor’s Order 2020-103, 67

D.C. Reg. 11802 (Oct. 7, 2020). The Mayor has

legislative authority to extend the emergency past

December 31, 2020.

The filing moratorium is included in a series of laws

enacted during the current public health emergency

that provide an array of protections for tenants.

1.

The filing moratorium

On May 13, 2020, the Mayor signed the

Coronavirus Omnibus Emergency Amendment Act of

2020 (D.C. Act 23-317). D.C. Code § 16-1501 provides

for property owners to regain possession of their

property when others occupy it without the right to do

so, and § 10 of this emergency act amended § 16-1501

to add a new subsection (b), which provides:

During a period of time for which the Mayor

has declared a public health emergency

pursuant to section 5a of the District of

Columbia Public Emergency Act of 1980,

effective October 17, 2002 (D.C. Law 14-194;

D.C. Official Code 72304.01), and for 60 days

thereafter, the person aggrieved shall not file

17a

a complaint seeking relief pursuant to this

section.

Section 29 provided that the act applied as of March 11

2020.

This filing moratorium was incorporated in

subsequent emergency and temporary acts and

remains in effect. See, e.g., Coronavirus Support

Emergency Amendment Act of 2020, Act

23-326; Coronavirus Support Congressional Review

Emergency Amendment Act of 2020, D.C. Act 23-328;

Coronavirus Support Temporary Amendment Act of

2020, D.C. Law 23-130.3

3 Section 303 of the Coronavirus Support Second Congressional

Review Emergency Amendment Act of 2020 amended the D.C.

Code to place substantial restrictions on debt collection activities.

D.C. Code § 28-3814(l)(2) now provides that during the public

health emergency and for 60 days thereafter, any creditor may not

“Initiate, file, or threaten to file any new collection lawsuit,” “Visit

or threaten to visit the household of a debtor at any time for the

purpose of collecting a debt,” or “Confront or communicate in

person with a debtor regarding the collection of a debt in any

public place at any time, unless initiated by the debtor.” As

amended by § 303, D.C. Code § 28-3814(b)(lC) defines “debt” to

mean money more than 30 days past due and owing as a result of

a Tease ... of... real... property for personal, family, or household

purposes.”

Notwithstanding amici’s assertion that that landlords “retain

access to other available avenues to assert their rights, including

... contract claims for unpaid rent” (Amicus Brief at 25), one of the

amici and a landlord have argued that the debt collection

legislation precludes a claim for unpaid rent. See Plaintiffs

Motion to Dismiss Counterclaim, Borum v. Kfetoublin, Civil

Action No. 2020 CA 003571 B (filed Nov. 12, 2020); Reply Brief of

Plaintiff Gallo Holdings LLC - Series 2, at 5 (filed Nov. 20, 2020).

The Court is not aware that any amici have argued that the debt

18a

2.

Other tenant protections

Legislation enacted during the pandemic

contains protections for tenants in addition to the filing

moratorium.

The protection that is most relevant to the issues

raised by the filing moratorium is the moratorium on

evictions themselves.

The COVID-19 Response

Emergency Amendment Act of 2020 (Act 23-247),

which became law ori March 17, 2020, amended D.C.

Code § 42-3505.01(k) to prohibit a housing provider

from evicting a tenant “[d]uring a period of time for

which the Mayor has declared a public health

emergency pursuant to § 7-2304.01.”4 The eviction

moratorium was included in subsequent emergency

and temporary acts and remains in effect.

This

COVID-19

Response

Emergency

Amendment Act also amended D.C. Code § 161502 to

provide that the days during a public health emergency

do not count toward the notice that a landlord must

provide before a trial in an eviction case:

The summons provided for by section 16-1501

shall be served seven days, exclusive of

Sundays, legal holidays, and a period of time

for which the Mayor has declared a public

health emergency pursuant to [§ 7-2304.01],

before the day fixed for the trial of the action.

The Eviction Notice Moratorium Emergency

Amendment Act of 2020 (D.C. Act 23-415), which was

collection legislation applies to a claim for possession (as

distinguished from a claim for unpaid rent).

4 Subsection (k-1) makes three exceptions involving illegal acts,

hardship, and abandonment, but no evictions have occurred

pursuant to any of these exceptions.

19a

enacted in October, prohibits issuance of notices to

tenants to vacate. The Fairness in Renting Temporary

Amendment Act of 2020 (D.C. Act 23-499), which was

enacted in November, requires housing providers to

provide notice of their intent to file a claim to recover

possession of a rental unit in all cases and to do so at

least 30 days before filing the claim. See also D.C. Code

§ 42-3208 (allowing parties to a lease the parties to

waive “by agreement in writing” notice to quit).

In addition, emergency and temporary

legislation amended D.C. Code § 42-3192.01(a)(l) to

require landlords to offer tenants a payment plan that

gives them at least one year to make past-due

payments. Subject to limits in other statutes, § 423192.01(g) allows a housing provider to file a collection

lawsuit or eviction case for non-payment of rent if the

tenant defaults on the terms of the payment plan.

B.

Procedural background

The Court had no reason to reject eviction

complaints that were filed in the Landlord and Tenant

(“L&T”) Branch between March 11 and May 13 when

the filing moratorium was first enacted, nor did it

dismiss on its own initiative cases filed during the

moratorium before or after May 13. To give plaintiffs

in these cases an opportunity to be heard, the Court

ordered them to show cause within 30 days from the

date of the order why the case should not be dismissed

due to the filing moratorium. The Court started in late

July 2020 to issue these show cause orders in each of

the eviction cases that was filed on or after March 11

and that was still pending. The Court has not

scheduled any hearings in any post-March 11 cases,

20a

except with respect to the pending legal challenges to

the filing moratorium.

A total of 1,854 eviction cases were filed in the

L&T Branch between March 11 and December 1, 2020.

Over two-thirds of these cases (1,307) were filed in

March (before the filing moratorium was first enacted),

388 in April (again before the filing moratorium was

first enacted), and 78 in May (with the filing

moratorium enacted in mid-May). Only a dozen or so

cases have been filed in each subsequent month

through November. 458 of these cases remain open.

The rest of these cases have been dismissed, pursuant

to a settlement agreement or otherwise.5

On July 28, 2020, the Presiding Judge of the of

the Civil Division issued a General Order Concerning

Landlord and Tenant Cases Filed On or After March

See

2020.

11,

http://www.dccourts.gov/sites/default/files/mattersdocs/General%20Order%20pdf/GeneralOrder-LT-July28-2020_0.pdf. The Presiding Judge designated the

undersigned judge to adjudicate all questions of law

relating to the filing moratorium that is common to any

eviction case filed on or after March 11, 2020 in the

L&T Branch. The General Order provided that the

calendar judges would resolve case-specific questions of

law and factual dispute if and when these cases

proceeded.

The Court held a hearing on September 9 to

discuss procedural issues relating to the filing

5 In almost all of the cases that have been dismissed, the parties

did not inform the Court of the terms of any settlement, so the

Court has no way of knowing whether these cases were dismissed

because the tenant paid any past-due rent, the tenant reached an

agreement with the landlord on a payment plan, the tenants

agreed to move out, or for another reason.

21a

moratorium that were specified in its August 27 order.

The Court issued a scheduling order on September 10.

The Court designated additional common questions of

law in orders issued on September 25 and October 1.

At a scheduling hearing on September 9, the

plaintiffs in these cases informed the Court that they

would rely, on their responses to the orders to show

cause, although one landlord later filed in Case No.

2020 LTB 008032 a motion for a declaratory judgment

that the filing moratorium is unconstitutional. See

Sep. 28, 2020 Order.e

Intervenor the District of Columbia filed its brief

on November 6 (“D.C. Brief’). A group of amici curiae

consisting of Bread for the City, the D.C. Bar Pro Bono

Center, the Legal Aid Society of the District of

Columbia, Legal Counsel for the Elderly, the

Neighborhood Legal Services Program, and Rising for

Justice filed their brief on November 6 (“Amicus

Brief’). Pursuant to an extension of time, defendant

Donna Butler in Case No. 2020 LTB 008107 filed her

brief on November 13. Various property owners filed

reply briefs on November 20.7

6 The defendants in Case Nos. 2020 LTB 008005 and 2020 LTB

8011 moved to dismiss these cases on the ground (common to all

post-March 11 cases) that they were filed during the filing

moratorium. For the reasons explained in this order, the Court

denies these motions. The plaintiffs in Case No. 2020 LTB 6315

filed a motion for preliminary and permanent injunctive relief,

including an order requiring any occupants of the property to

vacate. Because this motion goes only to the merits of plaintiffs’

claim and does not raise any common issue of law concerning the

applicability or validity of the filing moratorium, the calendar

judge will address the motion in due course.

7 To the extent any brief styled as a reply brief does not reply to

arguments made by supporters of the fifing moratorium, the

Court does not consider it. For example, Shirley Proctor and other

landlords filed an amicus brief on November 20 that contains a

22a

On November 30, the Court held a motion

hearing.8

II. CONSTITUTIONAL RIGHT OF ACCESS TO THE

COURTS

The constitutional right that the filing

moratorium most directly affects is the right of access

to the courts, and because the filing moratorium

unconstitutionally infringes this right, the Court limits

its analysis to this issue and does not address the

property owners’ other constitutional arguments. See

Part III below.

Standard of review

A.

1.

General principles

The United States Constitution guarantees the

“fundamental right of access to the courts.” Tennessee

This

v. Lane, 541 U.S. 509, 533-34 (2004).

constitutional guarantee is “among the most precious

of the liberties safeguarded by the Bill of Rights.”

United Mine Workers of America, District 12 v. Illinois

State Bar Association, 389 U.S. 217, 222 (1967). The

importance of this right was recognized in a seminal

case in the early days of the Republic: “The very

essence of civil liberty certainly consists in the right of

number of factual allegations with supporting affidavits, and the

Court does address these case-specific factual issues.

8 One of the cases identified by the Court as raising a common

issue of law, Cavalier Properties LLC v. Shelton, Case No. 2020

LTB 006576, was dismissed with prejudice by the plaintiff

pursuant to a settlement agreement. This case was not the only

case that raised the common legal issues decided by the Court in

this order, so its dismissal does not affect the Court’s jurisdiction

to resolve these issues.

23a

every individual to claim the protection of the laws,

whenever he receives injury,” and the government “will

certainly cease to deserve this high appellation [as a

government of laws, and not of men], if the laws furnish

no remedy for the violation of a vested legal right.”

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803)

(cleaned up).

“Perhaps no characteristic of an

organized and cohesive society is more fundamental

than its erection and enforcement of a system of rules

defining the various rights and duties of its members,

enabling them to govern their affairs and definitively

settle their differences in an orderly, predictable

manner.” Boddie u. Connecticut, 401 U.S. 371, 374

(1971).

The Constitution protects this right of access under

both the Petition Clause of the First Amendment and

the Due Process Clause of the Fifth Amendment. See

Christopher v. Harbury, 536 U.S. 403, 415 n.12 (2002).9

“The Petition Clause protects the right of individuals

to appeal to courts and other forums established by the

government for resolution of legal disputes.” Borough

of Duryea v. Guarnieri, 564 U.S. 379, 387 (2011)

(cleaned up); McDonald v. Smith, 472 U.S. 479, 484

(1985) (“filing a complaint in court is a form of

petitioning activity”). The Due Process Clause requires

civil litigants to be “granted at a meaningful time and

in a meaningful manner for a hearing appropriate to

the nature of the case, the formality and procedural

9 The right of access to the courts may also be rooted in the

Privileges and Immunities Clauses of Article IV or the Fourteenth

Amendment of the U.S. Constitution. See id. The Court need not

decide whether the Privileges and Immunities Clause applies to

Congress when it legislates for the District of Columbia. See

Landise v. Mauro, 141 A.3d 1067, 1075 & n.3 (D.C. 2016).

24a

requisites of which can vary, depending upon the

importance of the interests involved and the nature of

the subsequent proceedings.” Boddie, 401 U.S. at 378

(cleaned up). The Petition Clause and the Due Process

Clause raise “substantially the same question whether the process allows a claimant to make a

meaningful presentation.”

Walters v. National

Association of Radiation Survivors, 473 U.S. 305, 335

(1985).

Lane, 541 U.S. at 533-34, Boddie, 401 U.S. at

374, and other cases describe the constitutional right of

access to the courts as “fundamental,” and courts

usually apply “strict judicial scrutiny” when a law

substantially interferes with a fundamental right. See

Kadrmas v. Dickinson Public Schools, 487 U.S. 450,

457-58 (1988). In general, infringements on the right

of access to courts are subject to “more searching

judicial review.” See Lane, 541 U.S. at 52223.

More specifically, the right of access to the courts

“call[s] for a standard of judicial review at least as

searching, and in some cases more searching, than the

standard that applies to sex-based classifications,”

Lane, 541 U.S. at 529, and at least intermediate

scrutiny applies to sex-based classifications. See Craig

v. Boren, 429 U.S. 190, 197 (1976).10 Courts have used

intermediate scrutiny to analyze a variety of

restrictions on other First Amendment rights. See,

e.g., Abney v. United.States, 616 A.2d 856, 859-61 (D.C.

1992) (applying intermediate scrutiny to restrictions

Yanakos v. UPMC, 218 A.3d 1214, 1222-23, 1225 (Pa:

2019), applied intermediate scrutiny under a state constitutional

protection to a restriction on the right of access to courts.

25a

on the time, place, and manner of speech); Florida Bar

v. Went for It, 515 U.S. 618, 625-26 (1993) (applying

intermediate scrutiny to restrictions on commercial

speech); Turner Broadcasting System v. FCC, 512 U.S.

622, 661-662 (1994) (applying intermediate scrutiny to

cable must-carry regulations); United States v. O’Brien,

391 U.S. 367, 376-77' (1968) (applying intermediate

scrutiny to restrictions on conduct with an expressive

component); McCutcheon

v.

Federal Election

Commission, 893 F. Supp. 2d 133, 137 (D.D.C. 2012) (3judge court) (applying intermediate scrutiny to

restrictions on campaign contributions and strict

scrutiny restrictions on campaign expenditures

“although both types of limits implicate the most

fundamental First Amendment interests”) (cleaned

up)-11

' Courts do not apply strict or intermediate

scrutiny to all restrictions-on the right of access to

courts. United States v. Kras, 409 U.S. 434, 447 (1973),

found a “rational basis” sufficient to uphold a

restriction on access to bankruptcy courts. Kras teaches

that the level of scrutiny depends on the nature of the

rights that the party seeks to enforce through the

courts, and on the extent and impact of the restrictions.

Cases involving Second Amendment rights confirm this

restriction-specific approach to the level of scrutiny

under the First Amendment. “In the analogous First

Amendment context, the level of scrutiny we apply

11 The Court cites these cases not because it necessarily equates

the right of access to the courts with other rights protected by the

First Amendment or because these cases compel intermediate

scrutiny of all restrictions on the right of access to courts or of the

eviction filing moratorium at issue in this case. It cites these cases

only because they establish that intermediate scrutiny may be

warranted for a variety of restrictions on a range of activities

protected by the First Amendment.

26a

;

depends on the nature of the conduct being regulated

and the degree to which the challenged law burdens the

right.” United

States v. Chester, 628 F.3d 673, 682 (4th Cir. 2010).

“Borrowing from the [Supreme] Court’s First

Amendment doctrine, the rigor of this judicial review

[of restrictions on Second Amendment rights] will

depend on how close the law comes to the core of the

Second Amendment right and the severity of the law’s

burden on the right.” Ezell v. Chicago, 651 F.3d 684,

703 (7th Cir. 2011) (cleaned up).

When courts apply intermediate scrutiny, “the

burden of justification is demanding and it rests

entirely on the State.” See, e.g., United States u.

Virginia, 518 U.S. 515, 533 (1996) (sexbased

classification). “To withstand intermediate scrutiny, a

governmental restriction must be substantially related

to an important governmental objective.” Brown v.

United States, 979 A.2d 630, 641 (D.C. 2009) (cleaned

up); see Virginia, 518 U.S. at 533; Hutchins v. District

of Columbia, 188 F.3d 531, 541 (D.C. Cir. 1999) (en

banc) (applying intermediate scrutiny to a curfew on

juveniles). The government must establish “a ‘fit’

between the legislature’s ends and the means chosen to

accomplish those ends — a fit that is not necessarily

perfect, but reasonable; that represents not necessarily

the single best disposition but one whose scope is in

proportion to the interest served,” and the government

“must affirmatively establish the reasonable fit” that

the test requires. Board of Trustees v. Fox, 492 U.S.

469, 480 (1989) (cleaned up). Under intermediate

scrutiny, the government “must demonstrate that the

harms it recites are real and that its restriction will in

27a

fact alleviate them to a material degree.” Edenfield v.

Fane, 507 U.S.

761, 770-71 (1993); United States v. National Treasury

Employees Union, 513 U.S. 454, 475 (1995) (the

government “must demonstrate that the recited harms

are real, not merely conjectural, and that the

regulation will in fact alleviate these harms in a direct

and material way”).

“Intermediate scrutiny requires more than a

mere incantation of a proper state purpose.” District of

Columbia ex rel. W.J.D. v. E.M., 467 A.2d 457, 461

(D.C. 1983) (cleaned up). To carry its burden, the

government must establish the public benefits of the

restriction “by evidence, and not just asserted.” Annex

Books, Inc. v. City of Indianapolis, 581 F.3d 460, 463

(7th Cir. 2009). The statute’s proponent “can rely on a

wide range of sources, including legislative history,

empirical evidence, case law, and even common sense,

but it may not ‘rely upon mere anecdote and

supposition.’” Tyler v. Hillsdale County Sheriffs Dep’t,

837 F.3d 678, 694 (6th Cir. 2016) (quoting United

States v. Carter, 669 F.3d 411, 418 (4th Cir. 2012)).

The burden to justify a restriction under intermediate

scrutiny “is not satisfied by mere speculation or

conjecture” Edenfield, 507 U.S. at 770-71; see Ezell v.

Chicago, 651 F.3d 684, 709 (7th Cir. 2011) (the

government must supply “actual, reliable evidence to

justify restricting protected expression based on

secondary public-safety effects”); City of Los Angeles v.

Alameda Books, Inc., 535 U.S. 425, 438 (2002)

(evidence concerning zoning restrictions on adult

bookstores “must fairly support the municipality’s

rationale for its ordinance”); Annex Books, Inc. v. City

of Indianapolis, 624 F.3d 368, 369 (7th Cir. 2010)

(affirming preliminary injunction where a city’s

28a

“empirical support” for an ordinance limiting the hours

of operation of an adult bookstore was “too weak”).

“The quantum of empirical evidence necessary to

satisfy heightened judicial scrutiny of legislative

judgments will vary up or down with the novelty and

plausibility of the justification raised.” Nixon v. Shrink

Missouri Government PAC, 528 U.S. 377, 391 (2000).

2.

Intermediate scrutiny

The Court applies intermediate scrutiny in

evaluating the constitutionality of the filing

moratorium.

As discussed below, several factors justify the

application of intermediate scrutiny: the absolute

nature of the filing moratorium; its lengthy and

indefinite duration; property owners’ right to summary

proceedings in eviction cases; the constitutional

protection of private property rights; property owners’

inability to regain possession from an unwilling

occupant without a court order; the loss of critical

interim protection afforded by protective orders during

the moratorium; and the substantial delay in property

owners’ ability to regain possession of their property

until months after the public health emergency has

ended. The cumulative burden on property owners’

right of access to courts warrants intermediate

scrutiny.

The filing moratorium categorically prohibits

the filing of any case, no matter how compelling or

urgent the property owner’s interest in possession; it

does not merely make it more difficult to file eviction

cases during the public health emergency (for example,

by imposing procedural prerequisites).12 Because a

12 As the Court explains in Section II .A. 3 below, amici argue that

the filing moratorium has limited effect because it does not apply

29a

prohibition on filing completely precludes the would-be

plaintiffs access to the courts, the filing moratorium

burdens the core of the constitutional right of access.

See Ezell, 651 F.3d at 703.

The filing moratorium applies across the board

to all cases in which property owners try to regain

possession of their property. The primary impetus for

the filing moratorium and the other statutory tenant

protections was the crushing financial impact of the

pandemic on so many D.C. residents and their

resulting inability to afford rental housing in a

community that already suffered from a serious

shortage of affordable housing.

But the filing

moratorium protects people who lack the right to

occupy property for reasons that are entirely unrelated

to the pandemic and that even predate the pandemic.

For example, the filing moratorium applies to (a)

landlords who seek to evict a tenant because the tenant

violated committed crimes on ' the premises or

interfered with neighbors’ rights, (b) landlords who

want to exercise their right under D.C. Code § 423505.01(d) to terminate a tenancy so that they can

occupy their property for their personal use as a

dwelling, and (c) mortgage companies and purchasers

of property at a prepandemic foreclosure sale that seek

to evict a foreclosed homeowner who no longer has any

right to occupy the property.13

to eviction cases that invoke the ejectment statute and that are

filed in- the Civil Actions Branch, but the filing moratorium does

not contain this gaping loophole.

13 Amici are correct that the public has an interest in not forcing

such occupants into homelessness or crowded living conditions.

See Amicus Brief at 4. Nevertheless, property owners in these

cases are prejudiced by the multi-month delay produced by the

filing moratorium in obtaining a judgment for possession that

could be enforced when the eviction moratorium ends

30a

Furthermore, the duration of the filing

moratorium is both substantial and indefinite. The

filing moratorium has already lasted nine months, and

it will continue for a total of at least a year — until the

end of February 2021, which is 60 days after December

31, 2020, the date to which the Mayor has currently

extended the period of emergency. The Mayor has the

authority to extend the public health emergency into

2021, and if she does so, the filing moratorium will last

even longer. As the property owners acknowledged at

the November 30 hearing, approximately four months

of the prior delay is not attributable to the filing

moratorium because it would have occurred anyway: it

took time for the Court to develop the capacity to

conduct hearings remotely; so the Court was unable to

hold virtually any hearings in L&T cases from midMarch until early July.

Nevertheless, the delay

attributable to the filing moratorium starting in July is

substantial: it has already totaled over five months;

and it will continue for at least almost three more

months.

This substantial and indefinite delay is a

significant factor warranting intermediate scrutiny of

the filing moratorium because “time is of the essence”

in eviction cases. See Mahdi v. Poretsky Management,

Inc., 433 A.2d 1085, 1088 (D.C. 1980) (per curiam).

“First and foremost, the Landlord and Tenant Branch

of the Civil Division of the Superior Court of the

District of Columbia was intended to determine

disputes between landlord and tenant in a summary

fashion.” Davis v. Rental Associates, 456 A.2d 820, 822

(D.C. 1983) (en banc). A landlord’s interest in summary

resolution of its claims against a tenant has a

31a

constitutional basis. 14 The Court of Appeals has

stressed that the Supreme Court in Lindsey v. Normet,

405 U.S. 56, 74 (1972), “made a pointed allusion to the

constitutional rights of the landlord: ‘Nor should we

forget that the Constitution, expressly protects against

confiscation of private property or the income

therefrom.’” Mahdi, 433 A.2d at 1088; see Brown, 2020

D.C. App. LEXIS 120 at *17 n.37 (depriving landlord of

funds until an eviction case is resolved “might well

constitute the kind of confiscation against which the

Court warned in Lindsey”).15 Unconstitutional denial

of access can occur when “official action is presently

denying an opportunity to litigate for a class of

potential plaintiffs” even “only in the short term.”

Christopher, 536 U.S. at 413 (cleaned up).

Furthermore, the only way that landlords can

seek to vindicate their constitutionally protected

property rights is through an action for possession,

because D.C. law deprives the landlords of the self-help

remedy that they had under common law. See Mendes

v. Johnson, 389 A.2d 781, 787 (D.C. 1978). It is “the

availability of a summary procedure whereby a

landlord could quickly reacquire possession from a

defaulting tenant with the aid of judicial process” that

“justified the abrogation of the common law right of

14 That is true even if the claim is styled an action for ejectment.

See Section II.A.3 below.

15 This factor distinguishes this case from Kras, where the

Supreme Court applied rational-basis analysis in evaluating

restriction on access to bankruptcy courts. Kras relied on the fact

that “[t]here is no constitutional right to obtain a discharge of

one’s debts in bankruptcy.” Kras, 409 U.S. at 446. Here, in

contrast, landlords have a constitutional right to use their

property and to earn income from it, and that right is frustrated

when, for example, tenants materially breach their lease

obligations yet continue to occupy the landlord’s property.

32a

self-help and the rejection of precedents holding that

such right had been preserved.” Mahdi, 433 A.2d at

1088. The judicial process is the alternative to forcible

entry and detainer, and it is precisely because “[t]he

right to sue and defend in the courts is the alternative

of force” that this right “is the right conservative of all

other rights, and lies at the foundation of orderly

government.” Chambers v. Baltimore & Ohio R.R. Co.,

207 U.S. 142, 148 (1907). Landlords and tenants have

a private commercial relationship, and “[gjovernment’s

role with respect to the private commercial relationship

is qualitatively and quantitatively different from its

role in the establishment, enforcement, and dissolution

of marriage.” Kras, 409 U.S. at 445-56. Nevertheless,

eviction cases provide the means for property owners to

enforce their constitutional right to their property and

to income from it. Moreover, “a chose in action is a

constitutionally recognized property interest,” Phillips

Petroleum v. Shutts, 472 U.S. 797, 807 (1985), and

choses in action generally include rights of action

arising out of contract. See Boyce v. Boyce, 541 A.2d

614, 616 n.4 (D.C. 1988).16

16 Elmsford Apartment Associates, LLC v. Cuomo, 2020 U.S. Dist.

LEXIS 115354, 2020 WL 3498456 (S.D.N.Y. June 29, 2020),

upheld a moratorium imposed by New York State on eviction

filings against a constitutional challenge under the Petition

However, New York’s filing moratorium was

Clause.

substantially narrower than the District’s; among other things, it

lasted for only about three months (from May 7 to August 19), and

it applied only to actions for non-payment of rent. See id., 2020

U.S. Dist. LEXIS 115354, at *5, *11. Elmsford distinguished ACA

International v. Healey, 2020 U.S. Dist. LEXIS 79716, 2020 WL

33a

More specifically, the filing moratorium affects

the time-sensitive rights of property owners in two

important and concrete ways: (a) by depriving them of

their ability to obtain interim protection through a

2198366 (D. Mass. May 6, 2020), on the ground that the

moratorium on the filing of debt collection cases

“outlawed legal remedies of any kind” for the duration of the

pandemic. See id. at *52. The District’s filing moratorium

precludes property owners from seeking effective equitable

remedies against a whole class of tenants for at least a year - and

longer if the public health emergency lasts longer.

This Court respectfully disagrees with two components of the

ruling. First, Elmsford ruled that landlords’ ability to recover

damages for breach of contract meant that the moratorium on the

filing of eviction actions had no actual effect on their ability to

pursue a legal claim. See id. at *49. However, even putting aside

the substantial question of whether the statutory moratorium on

debt collection activities precludes the landlords from seeking

payment of money due under the lease contract (see note 3 above),

a landlord’s ability to seek damages from a judgment-proof debtor

is not a substitute for an action for possession, and as the Court

discusses below, the serious and lasting financial impact of the

pandemic means that many tenants may never be able to make

their landlords whole. Second, Elmsford states that the filing

moratorium “merely postpones the date on which landlords may

commence summary proceedings against their tenants.” Id. at

*45. But if the plaintiff is not permitted to initiate a proceeding

until a substantial time after its cause of action accrues, the

proceeding is summary in name only, and Elmsford does not

discuss the constitutional underpinning of a landlord’s right to a

summary proceeding. Nor does Elmsford discuss landlords’

constitutional rights as property owners, or the impact of the filing

moratorium on landlords’ ability to obtain interim relief.

Likewise, the CDC moratorium at issue in Brown v. Azar, 2020

U.S. Dist. LEXIS 201475, at *50-52, was substantially more

limited in scope and duration than the D.C. moratorium, and like

Elmsford, Brown did not consider the factors discussed in this

footnote that affect the level of scrutiny.

34a

protective order or undertaking until the case is

resolved; and (b) by substantially delaying their ability

to regain possession.

a.

Protective orders

During the extended period of the filing

moratorium, landlords are completely deprived of the

ability to obtain any interim protection whatsoever.

This impact occurs primarily when landlords contend

that tenants are behind in their rent, and these cases

constitute a large majority of cases filed in the L&T

Branch.17 But the impact also occurs when property

owners seek to evict foreclosed homeowners and other

occupants who claim an ownership interest in the

property: the filing moratorium precludes property

owners from obtaining interim protection in the form of

an undertaking from these defendants, and the

“function and purpose” of undertakings and protective

orders “is the same: to balance and protect the parties’

legitimate and competing interests over the course of

the litigation.” See Penny v. Penny, 565 A.2d 587, 58990 (D.C. 1989).18 For the sake of simplicity, the Court

focuses on protective orders even though property

17 Protective orders are generally not entered in cases that do not

involve non-payment of rent. See L&T Rule 12-I(a)(l)(C) (“In a

case that does not include an allegation of nonpayment of rent, the

court may enter a protective order over the defendant’s objection

only if, after inquiry by the court, the defendant declines to

stipulate that the plaintiffs acceptance of rent from that date

forward is without prejudice to the plaintiffs ability to prosecute

the action.”).

18 An undertaking is an equitable device intended “to protect the

plaintiff by providing for intervening rent and damages, including

assurance that the plaintiff, if successful, will have been

compensated for the cloud on the title.” Turner v. Day, 461 A.2d

697, 699 (D.C. 1983).

35a

owners have a comparable interest in obtaining

undertakings.

A protective order “is designed to maintain the

status quo between the parties and ensure that the

landlord will not be exposed to a prolonged period of

litigation without rental income.” Brown v. Pearson,

2020 D.C. App. LEXIS 120, at *11 (D.C. April 2, 2020)

(cleaned up). Under a protective order, a tenant makes

payments during the pendency of the case into the

registry of the court, and at the end of the case, the

court releases the money to the landlord if the landlord

prevails. Because of its integral role in protecting both

landlords and tenants, the protective order remedy

“has become commonplace in landlord-tenant court.”

Id. at *17 (cleaned up). By precluding landlords from

filing a case, the filing moratorium precludes landlords

from obtaining protective orders, and it thereby

exposes landlords to the precise danger against which

protective orders are intended to protect: a prolonged

period without rental income,

Like indefinite

suspension of a protective order, indefinite

postponement of the ability to obtain a protective order

may deprive a landlord, including a small landlord,

“permanently of any rental income from her property

for the entire duration” of the postponement, as well as

“of her own use of that property for the same time

period.” See id. at *16.

The unavailability of protective orders during

the filing moratorium directly implicates property

owners’ constitutionally based interest in expeditious

resolution of eviction cases. “Hand in hand with the

summary nature of a landlord-tenant proceeding is the

mechanism created by the courts to maintain an

equitable balance during litigation of the suit for

possession: the so-called protective order.” Davis, 456

36a

A.2d at 823. The moratorium completely deprives

landlords of the interim protection to which they would

otherwise be entitled in order to prevent confiscation of

their property and associated income.

The resulting injury to property owners during

the pandemic will often be irreparable. As the District

and amici acknowledge, the job losses and other

financial hardship caused by the pandemic means that

many tenants will never be able to pay the rent that

they owe. As the

District states, “Without an adequate response, the

pandemic was expected to increase eviction filings

significantly as a result of precipitous losses in

employment and income.” D.C. Brief at 6; id. at 8

(quoting Council declaration that “District tenants who

are impacted by decreased work hours or temporary

layoffs ... may have their earnings greatly reduced”).

As a lawyer for one of the amici recently stated:

When there’s no money to pay the rent, I

cannot stop the evictions, and I just see it

coming - hundreds and thousands of calls

from people who face evictions I don’t have

a legal defense against. ... For a lot of

these cases, it’s going to be open-and-shut

just because the tenants haven’t paid and

can’t pay. And there’s not going to be

enough assistance to pay for them.

There’s going to be nothing that can be

done for a lot of these people.

William Roberts, “What Lies Ahead: An Avalanche of

Evictions,” Washington Lawyer

(November/December 2020) (quoting an attorney from

the Neighborhood Legal Services

37a

Program). It is settled that inability to pay rent is not

a defense to claim for possession: “To put it in the

vernacular, if you cannot pay the rent, you cannot stay

on in the landlord’s apartment. It is just about as

simple as that.” Brown, 2020 D.C. App. LEXIS 120, at

*21 (cleaned up).19

For an indigent tenant, “the likelihood that he

will be able to make [protective order payments] up at

some future point (after a credit for any amounts

[awarded on a tenant petition or for unsafe or

unsanitary . conditions caused by housing code

violations]) appears purely hypothetical,” and

postponing the landlord’s ability to obtain a protective

order “would be virtually equivalent to confiscation of

her property.” Brown, 2020 D.C. App. LEXIS 120, at

*17. This explains why the Court of Appeals has

“admonished courts to consider the landlord’s need for

interim protection, with a presumption that the

existing rent provides the measure of a just protective

order.” Id. at *21 (cleaned up). The protection afforded

to landlords by protective orders is not less important

to them during a public health emergency and the two

months after it ends.

As the Court of Appeals recently stated:

In fashioning an appropriate protective

order, a court should consider the

interests of both the landlord and the

tenant and strive to balance the equities

and to accommodate the competing

considerations inherent in landlord19 The COVID-19 legislation does not change this substantive law.

The District and amici stress that the legislation does not affect

tenants’ obhgation to pay rent under a lease. D.C. Brief at 24;

Amicus Brief at 20.

38a

The guiding

tenant controversies,

principle, we have said,’is to arrive at a

reasonable monthly payment which will

impose a fair obligation on the tenant,

permit the case to be heard on the merits,

and assure the landlord that if he wins he

will, having been denied interim

possession, at least receive reasonable

intervening rent,

In fulfilling that

obligation, the court should consider all

relevant factors, not only factors favorable

to one side.

Brown, 2020 D.C. App. LEXIS 120, at *18-19 (cleaned

up). A landlord’s right to apply for a protective order

does not necessarily mean that a tenant hard hit by the

pandemic will be ordered to pay money that the tenant

does not have. As the Court of Appeals has stated, the

Court requires tenants to make only a monthly

payment that imposes a fair obligation. See id. The

filing moratorium precludes landlords from obtaining a

protective order that requires tenants to pay even an

amount that they can afford, and from a landlord’s

point of view, something is better

than nothing.

Notably, protective orders protect tenants as

well as landlords: not only does a protective order

“remediate, to some extent, the landlord’s exposure to

a prolonged period of litigation without rental income,

so as to avoid placing her at a severe disadvantage

during the period of litigation,” but it also “protects the

tenant’s ability to satisfy his housing needs, in that

such payments prevented him from falling further in

arrears.” Brown, 2020 D.C. App. LEXIS 120, at *20

39a

(cleaned up).

Protective orders also benefit a

“defendant’s fellow tenants,” who also “merit the law’s

consideration”: “To the extent that one tenant pays no

rent for the use of particular premises, he (1) may make

it financially impossible for his landlord to make

needed repairs, and

(2) heightens the landlord’s need to increase rental

charges to the paying tenants to compensate for the

lost income.” See Davis, 456 A.2d at 824.

At the November 30 hearing, amici contended

that any financial harm to landlords may not be

irreparable because of the possibility that they or their

tenants will eventually get rental assistance from the

District or a private organization that covers the

unpaid rent owed by tenants. The record does not

provide a basis for the Court to assess the probability

that landlords will ultimately be made whole even

though they are unable to get to a protective order.20

In any event, before the pandemic struck, landlords

were not precluded from obtaining a protective order

during the pendency of a case simply because the

tenant might ultimately find a way to come up with

past-due rent, and the filing moratorium causes

landlords to lose the opportunity for similar protection

during the pandemic.21

20 One organization, estimated by the end of 2021, the pandemic

will cause tenants to fall behind in their rent by $80-$130 million.

See Analysis of Current and Expected Rental Shortfall and

Potential Evictions in the U.S., Appendix B (prepared for the

National Council of State Housing Agencies, Sep. 25, 2020)

(available at https://www.ncsha.org/wpcontent/uploads/Analysis-of-Current-and-Expected-RentalShortfall-and-Potential-Evictions-inthe-US_Stout_FINAL.pdf).

Amici do not represent that approximately $100 million in rental

assistance will he available to tenants.

21 Tenants may argue that no protective order is

necessary, or that the payment should be lower, because they

40a

b.

Delay in obtaining possession

In addition to the harm to property owners

caused by the loss of the ability to obtain a protective

order or undertaking for a substantial period, the filing

moratorium causes harm by substantially delaying

their ability to obtain a judgment of possession and to

execute it after the moratorium on actual evictions

ends. Without the filing moratorium, a property owner

with a judgment for possession could start to execute it

as soon as the public health emergency ends, because

the legislative branch determined that it was

consistent with the public health to resume evictions at

that time. With the filing moratorium, the property

owner cannot even file the case until 60 days after the

mayoral emergency ends. Since early July as the

Court’s capacity to hold remote hearings expanded, the

Court has been holding hearings in eviction cases that

were filed before March 11, and it has now begun to

conduct trials in these cases. The Court has the

capacity to hold hearings and trials in post-March 11

cases as well.

It is reasonable to expect that by the time the

eviction moratorium ends simultaneously with the end

of the mayoral public health emergency, cases filed on

or after March 11, 2020 would either be resolved by

trial or otherwise, or they would at least be

substantially advanced. In 2019, the mean time from

filing to disposition in L&T cases without a jury

demand was 52 days. The Court resolved 70% of these

cases within 45 days, 87% within 100 days, and 97%

within 150 days. The Court’s ability to resolve eviction

expect to get rental assistance before the case is over, and the

Court can consider that argument and competing arguments on a

case-by-case basis.

41a

cases reasonably promptly means that the filing

moratorium prevented landlords from being in a

position to regain possession relatively soon after the

eviction moratorium ends.

Enforcement of the filing moratorium from

March 11, 2020 would delay the filing of new eviction

by at least a year - until March 2021, which is 60 days

after December 31, 2020, when the moratorium will

end unless the Mayor further extends the public health

emergency.

Excluding the four-month delay

attributable to the Court’s inability to conduct trials or

even hearings between March and early July, and with

a mean time to disposition of less than two months,

cases that would have been resolved early in the fall of

2020 would instead not be resolved until late spring

2021.

D.C. Code § 42-3505.Ola, which requires

property owners to provide notice at least 21 days

before the scheduled date of any eviction, allows

property owners that establish their right to possession

to evict tenants, squatters, and foreclosed homeowners

starting 21 days after the eviction moratorium ends.

Because of the filing moratorium, property owners that

would otherwise have obtained a judgment or made

substantial progress toward a judgment when the

eviction moratorium ends will instead be 60 days away

from even filing the case that would otherwise be over

or close to over. Instead of completing the relatively

ministerial task of obtaining a writ of restitution as

soon as the public health emergency ends, these

property owners would have to wait another 60 days to

file cases that ordinarily take two months to

42a

complete.22 A delay of four months is substantial in the

context of a proceeding in which time of the essence.

See Mahdi, 433 A.2d at 1088.23

22 If D.C. Code § 16-1502 imposes a moratorium on service in

eviction cases (an issue that the Court does not decide — see Part

III below), and if property owners therefore could not proceed with

new eviction cases even if they could file them, the filing

moratorium still substantially delays final resolution of the

several hundred cases that were filed during the moratorium and

are still pending. Property owners have effected service in a

number of these cases, and the Court will decide in due course any

challenge to the legality of such service.

23 Some landlords argue that the moratorium prejudices them

because the delay in filing combined with the three-year statute

of limitations limits the amount of back rent that they can collect.

Response, of Plaintiff to Order to Show Cause, Towers v. Talley,

Case No. 2020 LTB

006315, at *10 (filed Aug. 12, 2020). However, the Chief Judge

has tolled “all deadlines and time limits in statutes, ... including

statutes of limitations,” from March 18, 2020 until at least

January 15, 2021. See, e.g., November 5, 2020 Order

(http://www.dccourts.gov/sites/default/files/mattersdocs/General%200rder%20pdf7AmendedOrder-ll-5-20_FINAL.PDF); Addendum to the General Order

Concerning Civil Cases, at 3

(explaining the scope of the tolling of statutes of limitation)

(https://www.dccourts.gov/sites/default/files/mattersdocs/General%200rder%20pdf/November30-AmendedAddendum-to-General-Order.pdf). Without citing any statute or

other authority, these landlords contend that the Court does not

have authority to toll statutes of limitations. See Plaintiffs

Response to the Court’s Order to Show Cause, at 4, Alvin L

Aubinoe, Inc. v. Williams, Case No. 2020 LTB 006674 (filed Aug.

19, 2020). However, D.C. Code § 11—745(a)(1) grants the Chief

Judge open-ended authority “to delay, toll, or otherwise grant

relief from the time deadlines imposed by otherwise apphcable

laws” for the duration of any emergency situation rendering it

impracticable for a class of litigants to comply with the deadline,

43a

3.

Application

moratorium to ejectment actions

of

the

filing

As the Court discusses in the preceding section,

a key factor affecting the degree of scrutiny of the filing

moratorium involves the extent to which it restricts the

right of access to courts. A cornerstone of amici’s

defense of the filing moratorium is that the burden is

minimal because the moratorium does not affect the

ability of property owners- to file ejectment actions in

the Civil Actions Branch. According to the amici, “the

filing moratorium only addresses the filing of summary

claims for possession in the Landlord and Tenant

Branch of this Court under D.C. Code § 16-1501, and

nothing prevents a landlord from a civil action for

ejectment that provides the same ultimate remedy of

possession of the unit.” Amicus Brief at 11.24 This

argument does not have any support in the language of

the statute, and the moratorium on the filing of eviction

cases applies to cases in the Civil Actions Branch

seeking possession under the ejectment statute, D.C.

Code § 16-1101. Property owners may not circumvent

the filing moratorium by artful pleading.

Section 16-1501(a) covers any complaint filed by

a person “for the restitution of possession” against a

person who “detains possession of real property

without right, or after his right to possession has

and § 11—745(a)(1) does not contain any exception for statutes of

limitations. . A statute of limitation imposes a “time deadline” in

the ordinary meaning of the term. As a result, the amount of back

rent that landlords can try to recover in an eviction case is not

affected by the filing moratorium.

24 At the November 30 hearing, the District stated that it

does not have a position on this issue.

44a

ceased.” Subsection (b) provides, “During a period of

time for which the Mayor has declared a public health

emergency pursuant to § 7-2304.01, and for 60 days

thereafter, the person aggrieved shall not file a

complaint seeking relief pursuant to this section.”

Amici assert that if a property owner seeking

possession invokes only § 16-1101 and not § 16-1501,

the property owner is not - in the words of § 16-1501(b)

- seeking relief “pursuant to this section,” so the filing

moratorium in § 16-1501(b) does not apply. Amicus

Brief at 11. However, whether or not a property owner

explicitly invokes § 16-1501, its complaint is “for the

restitution of possession” against a person who “detains

possession of real property without right, or after his

right to possession has ceased,” and the property owner

is in fact and in substance seeking relief “pursuant to”

§ 16-1501. Therefore, the filing moratorium in § 161501(b) applies.

Amici’s interpretation would permit easy and

complete avoidance of the filing moratorium by

property owners, and this result would violate “one of

the most basic interpretive canons,” which is “that a

statute should be construed so that effect is given to all

its provisions, so that no part will be inoperative or

superfluous, void or insignificant.” See Stevens v. D. C.

Department of Health, 150 A.3d 307, 315-316, (D.C.

2016) (cleaned up). The Court agrees with one of the

plaintiffs that “[i]f Civil Actions is indeed an

immediately viable route for all landlords to take, as

amici contend, the Superior Court could indeed dispose

of the entire constitutional challenge by immediately

certifying the entire docket of the Landlord & Tenant

branch to the civil actions branch.” See Reply Brief of

Plaintiff Gallo Holdings LLC - Series 2, at 11 (filed

Nov. 20, 2020).

45a

In whichever branch they are filed, eviction

cases should be resolved expeditiously because the

Court has the same obligation to expedite eviction

cases in the Civil Actions Branch as those in the L&T

Branch. As amici correctly acknowledged in the

November 30 hearing, property owners seeking to eject

occupants pursuant to § 16-1101 are subject to the

same prohibition on self-evictions as property owners

seeking the same remedy of possession pursuant to §

16-1501. See Mendes, 389 A.2d at 783. As discussed

in Section II.A.2 above, “the availability of a summary

procedure whereby a landlord could quickly reacquire

possession from a defaulting tenant with the aid of

judicial process” is the quid pro quo for “the abrogation

of the common law right of self-help and the rejection

of precedents holding that such right had been

preserved.” See Mahdi, 433 A.2d at 1088. In addition,

both Rule 1 of the Superior Court Rules of Civil

Procedure (“Civil Rules”) applicable in the Civil Actions

Branch and Rule 1 of the Superior Court Rules of

Procedure for the Landlord and Tenant Branch (“L&T

Rules”) require all rules to be construed, administered,

and employed to secure the “speedy” determination of

every action and proceeding.25

Further confirmation that the duty to expedite

eviction cases does not depend on whether the case is

25 At the November 30 hearing, amici contended that cases in the

Civil Actions Branch may take longer to resolve because they

involve discovery. Parties in cases subject to the Civil Rules have

a right to discovery, and under L&T Rule 10(a), there is generally

no discovery in cases in the L&T Branch subject to the L&T Rules.

However, discovery need not significantly delay a case, and when

discovery occurs in eviction cases in the Civil Actions Branch, it is

usually limited. See also Civil Rule 26(b)(1) (incorporating the

proportionality principle); Civil Rules 26(b)(2)(a) and 26(c)(1)

(authorizing limitations on discovery).

46a

in the L&T Branch or the Civil Actions Branch is the

Court’s duty under the L&T Rules to expedite cases

certified from the L&T Branch to the Civil Actions

Branch. L&T Rule 5(c)(2) requires an “expedited trial”

of any case certified to the Civil Actions Branch because

the defendant asserts a plea of title, and Rule 6(b)

similarly requires an “expedited trial” in the Civil

Actions Branch if the defendant properly demands a

jury trial.26 These rules corroborate that the Court has

the same duty to expedite eviction cases in the Civil

Actions Branch as those in the L&T Branch.

Indeed, nothing in any statute or in the L&T

Rules prohibits a property owner from filing in the L&T

Branch a complaint seeking possession through an

ejectment action under § 16-1101.

The form complaint used in the Landlord and Tenant

Branch does not identify the statute under which the

case is brought. The Court also has the option to create

a calendar that includes both eviction cases filed in the

Civil Actions Branch and those filed in the L&T

Branch.27

At the November 30 hearing, amici could not

identify any persuasive reason why the Court could not

treat all the post-March 11 eviction cases filed in the

L&T Branch as cases seeking possession through

26 Amici’s argument involves eviction cases filed in the Civil

Actions Branch without a jury demand, and the Court likewise

focuses on cases without a jury demand. If the defendant makes

a jury demand (in the L&T Branch or the Civil Actions Branch),

the case will take substantially longer to resolve, and the Court

will not be able to resume conducting jury trials in any civil cases

until sometime in 2021.

27 For example, the debt collection calendar includes both cases

filed in the Civil Actions Branch because the alleged debt exceeds

$10,000 and cases filed in the Small Claims Branch because the

alleged debt is $10,000 or less.

47a

ejectment under § 16-1101. Amici did argue that

treating eviction cases filed in the Civil Actions Branch

as expeditiously as eviction cases filed in the L&T

Branch would violate the intent of the statute, but they

did not point to anything in the language or legislative

history of the filing moratorium to support this

argument. The statutory provision containing the

filing moratorium does not mention the L&T Branch,

much less provide that this moratorium applies only to

cases filed in the L&T Branch, nor does this statutory

provision explicitly address how quickly or slowly the

cases should be resolved. In a different context, amici

acknowledge that the “eviction filing moratorium, an

amendment to a provision of Title 16 of the D.C. Code,

is not concerned with either the organization or

jurisdiction of this Court.” See Amicus Brief at l7. The

Court is not willing to read into any emergency or

temporary legislation an implicit directive to slow-roll

eviction cases filed in the Civil Actions Branch.

Because interpreting the filing moratorium in §

16-1501(b) not to apply to ejectment actions would

effectively nullify the filing moratorium, this

interpretation would mean that the filing moratorium

would achieve none of the purposes that amici and the

District ascribe to it. As the Court discusses in more

detail in Section II.B.2 below, the District and amici

argue that the mere pendency of an eviction case may

cause anxiety and depression and lead tenants to move

out and become homeless or move to more crowded

quarters, and their focus is on tenants who do not

understand the protections that they have under D.C.

law — in particular, those who are unaware of the

existence of the eviction moratorium. However, amici

do not explain why the filing of an eviction case in the

Civil Actions Branch would have any different impact

48a

on these vulnerable tenants who fear or distrust the

legal system than the filing of an eviction case in the

L&T Branch. These legally unsophisticated tenants

would not have any reason identified by the District

and amici to think that the speed with which cases filed

in the Civil Actions Branch are resolved means that

they need not be worried by the filing of the case. Nor

do the District and amici demonstrate that these

tenants would assume that compared to cases filed in

the L&T Branch, cases filed in the Civil Actions Branch

are resolved so slowly that eviction is a dim and distant

prospect that need not concern them.

For these reasons, the Court concludes that the

filing moratorium applies to eviction cases in which the

property owner invokes § 16-1101 instead of § 16-1501,

or that are filed in the Civil

Actions Branch instead of the L&T Branch.

4.

Summary

Identifying the appropriate level of scrutiny of

the statutory moratorium restricting property owners’

constitutional right of access to the courts is a critical

threshold issue. The parties have not cited, and the

Court has not found, any cases, and certainly no

Supreme Court or District of Columbia Court of

Appeals cases, that are directly on point. Consistent

with cases cited in Section II.A. 1 above, the Court

agrees with amici that “[w]hile the precise standard is

unsettled, courts generally have engaged in an analysis

weighing the severity of the intrusion against the

importance of the governmental interest that it is

intended to serve.

Amicus Brief at 21-22.

Intermediate scrutiny permits the Court to conduct

this type of analysis. In contrast, rational basis review

49a

(the standard that the District and amici contend

should apply) does not provide for consideration of the

burdens imposed by the filing moratorium on the

constitutional rights of property owners:

under

rational basis review, “it suffices if the law could be

thought to further a legitimate governmental goal,

without reference to whether it does so at inordinate

cost.” See Fox, 492 U.S. at 480 (emphasis added).

Several factors weigh in favor of strict scrutiny,

including the fundamental nature of the constitutional

right of access to the courts, constitutional protection of

property rights that makes times of the essence in

eviction cases, the breadth of the moratorium, and its

lengthy and indefinite duration. Nevertheless, strict

scrutiny is not warranted because of the temporary

nature of the moratorium and the government’s

authority to regulate private commercial relationships.

Considering all the relevant factors as a whole, the

Court concludes that it should apply intermediate

scrutiny.

B.

Application of the standard

For the reasons explained above, the filing

moratorium significantly burdens the constitutional

rights of property owners by substantially delaying a

proceeding that is required to be summary in nature

and by depriving them of interim protection for a

By depriving

substantial and extended period,

property owners of their right to a hearing appropriate

to the nature of the case “at a meaningful time,” the

filing moratorium limits the property owners’

constitutional rights. See Boddie, 401 U.S. at 378.

As a result, the District has a demanding burden

of justification under intermediate scrutiny that

requires it to affirmatively establish a substantial

50a

relationship to an important government interest, a

reasonable fit between the legislature’s ends and the

means chosen to accomplish those ends, and

proportionality between the scope of the filing

moratorium and the interest served. See Virginia, 518

U.S. at 533; Fox, 492 U.S. at 480; see generally Section

II.A. 1 above. The District “must demonstrate that the

harms it recites are real and that its restriction will in

fact alleviate them to a material degree.”

See

Edenfield, 507 U.S. at 770-71.

In defense of the filing moratorium, the District

and amici offer two primary justifications: (1) people

may move out during the public health emergency

solely because they are sued in an eviction case, even

though the moratorium on evictions lasts until the

public health emergency ends; and (2) occupants will

suffer psychological harm solely because the owner of

the property in which they live sues them for

possession. Neither justification is sufficient to carry

the District’s burden under intermediate scrutiny. The

anecdotal support offered by the District and amici is

not enough to justify the substantial restriction on

property owners’ constitutional right of access to the

courts, and supposition is not sufficient to fill in the

gaps. See Tyler, 837 F.3d at 694; Edenfield, 507 U.S.

at 770-71; Annex Books, Inc., 624 F.3d at 369.28

28 The District and amici do not contend that the litigation process

itself puts tenants or other types of defendants at risk. The Court

enables parties to litigate eviction (as well as other) cases

efficiently and safely notwithstanding the pandemic. During the

public health emergency, the Court has conducted only remote

hearings so that no one is at risk of infection, and the Court has

developed procedures to conduct remote bench trials, as well as

evidentiary hearings such as hearings concerning protective

orders. The Court will not resume in-person hearings until

htigants, lawyers, court staff, and others can participate safely,

51a

The Court again emphasizes that protecting our

community from the ravages of COVID19 is an

important and indeed compelling government interest

and that the District and amici have provided

substantial evidence that mass evictions would

significantly worsen an already serious public health

crisis.

However, with the moratorium on actual

evictions in place, the District and amici have not

established the requisite fit between the filing

moratorium and this objective or that the filing

moratorium will in fact alleviate the public health risks

“to a material degree” in proportion to the harm to

property owners. See Fox, 492 U.S. at 480; Edenfield,

507 U.S. at 770-71.

1.

Move-outs due to lack of awareness

of the eviction moratorium

According to the District, one goal of the filing

moratorium is to ensure that tenants who are not

aware of the filing moratorium or other legal

protections do not move out simply because they get

sued. Citing the statement of a Councilmember, the

District asserts that the purpose of the prohibition on

notices to vacate was to “make sure that tenants are

not moving and making themselves homeless because

they are unaware of the eviction moratorium.” D.C.

Brief at 1011; see Amicus Brief at 5 (“as the Council

also has recognized, service of an eviction notice or

and the Court will enforce safety rules (for example, requiring the

use of masks) to ensure that no one is exposed to a significant risk

of infection in any in-person hearing. The Court has also

implemented measures to permit tenants to make protective order

payments safely during the pandemic. See, e.g., Chief Judge’s

November

5

Order

(https://www.dccourts.gov/sites/default/files/mattersdocs/General

%200rder%20pdf/Amended-Order-ll-5-20_FINAL.PDF).

52a

complaint can sow fear and confusion, leading tenants

to move out rather than face the court process”) (citing

Eviction Notice Moratorium Emergency Declaration

Resolution of 2020, Res. 23-519, § 2(c), 67 D.C. Reg.

11332 (Oct. 2, 2020)). Legal services providers told the

Council about tenants who were not aware of their

rights under D.C. law or of the moratorium on evictions

and who were prompted by the mere filing of an

eviction case to consider moving. But this information

is anecdotal, and “mere anecdote” is not sufficient to

satisfy intermediate scrutiny. See Tyler, 837 F.3d at

694. Although “legislatures are not obliged to insist on

scientific methodology” (Hutchins, 188 F.3d at 544), it

is relevant that the District and amici do not offer any

statistical or other expert testimony demonstrating

that a significant number of tenants would move solely

because they are sued during a moratorium on

evictions. “In the realm of First Amendment questions,

the legislature must base its conclusions upon

substantial evidence.”

See Turner Broadcasting

System, 520 U.S. at 196 (applying intermediate

scrutiny) (cleaned up).

Approximately two months passed between the

enactment of the eviction moratorium and enactment

of the filing moratorium, and during this time, property

owners filed approximately 1,700 eviction cases. The

District and amici do not claim that before it enacted

the filing moratorium, the Council gathered data about

(1) how many of these tenants moved out, (2) how many

of the tenants who moved out decided to move just

because they got sued and did not know there was a

filing moratorium, or (3) how many of these tenants

became homeless or moved into more crowded living

conditions. If tenants moved into living quarters

equivalent to the quarters they moved out of, the move

53a

would not jeopardize their health or safety; the District

and amici do not contend that the process of moving is

inherently unsafe during the pandemic or that moving

cannot be accomplished consistent with the public

health guidelines issued by the District.

The Court accepts that when property owners

file eviction cases, some occupants may be unaware of

the eviction moratorium and move out because of

ignorance, fear, or confusion, and that some of them

may end up in less safe living conditions due to the

scarcity of affordable housing in the District of

Columbia. However, according to the District, the evil

against which the filing moratorium protects is “mass”

evictions. See D.C. Brief at 5, 21. Nothing in the

legislative record or court record suggests that the lack

of a filing moratorium did cause (during the two

months of the public health emergency before it was

enacted) or would cause move-outs on a mass scale. On

the other, the filing moratorium affects 100% of

property owners that are entitled to seek possession of

their property during the public health emergency. See

Section II.A.2 above. The District does not establish a

proportional fit between the filing moratorium and the

danger against which it is intended to protect: it does

not show that enough occupants will end up in less safe

housing solely because of the filing of an eviction case

to justify this sweeping and lengthy restriction on

property owners’ right of access to the court. See Fox,

492 U.S. at 480.

The nexus between the alleged problem and

solution is more attenuated because the District has

taken action to inform tenants about their rights and

to spread the word that it has banned evictions for the

duration of the public health emergency. Although the

District was unable to explain at the November 30

54a

hearing what the Office of the Tenant Advocate

(“OTA”) or other agencies are doing, it did not contend

that these efforts are anemic or ineffective. Moreover,

amici confirmed at the November 30 hearing that legal

services organizations are systematically and

affirmatively reaching out to defendants in eviction

cases to inform them of their rights and of the eviction

moratorium, and that tenant organizers are likewise

doing whatever they can to make sure that tenants

understand their options and their rights.29

2.

Anxiety and depression

Amici contend that the filing moratorium

reduces significant emotional harm: “Even for those

who choose not to move when threatened with a new

eviction filing, the threat of a pending case is likely to

cause anxiety, depression, and suicidal ideations, at a

time when many Americans already are struggling

with fear and anxiety related to the pandemic and the

economic crisis.” Amicus Brief at 5-6. There is no

question that millions of Americans, and probably

29 In their brief and at the November 30 hearing, amici discussed

the adverse effect that a prior eviction case can have on a tenant’s

ability to obtain affordable housing or indeed any housing at all,

as well as on their creditworthiness. Amicus Brief at 5. The Court

accepts that landlords may be less willing to rent to people who

were defendants in earlier eviction cases or may charge them a

higher rent, and these people may have a more difficult time

obtaining credit. However, these effects would occur regardless of

the pandemic. Tenants can avoid these effects by using the 30day statutory notice period to cure any lease violation before the

landlord can file an eviction case and/or by getting a payment

plan. See Section I.A.2 above. The filing moratorium creates a

perverse incentive to the extent that it encourages tenants who do

not want an eviction case on their record and who cannot afford

their rent to move during the public health emergency before the

landlord can file the case.

55a

hundreds of thousands of the 700,000 District

residents, are struggling emotionally as a result of the

pandemic, and these difficulties are seriously

compounded for those who also have to deal with the

constellation of problems associated with insecure

housing.

However, the defenders of the filing

moratorium do not show that this moratorium

significantly reduces these psychological effects and

thereby justifies the substantial impairment of the

constitutional rights of property owners caused by the

moratorium.

Whether or not a property owner files an eviction

case, inability to pay rent or to make mortgage

payments, or other circumstances that put occupants

at risk of eviction, by themselves cause emotional

distress. That is particularly so when the income loss

is long-term and the tenant or borrower has no realistic

prospect of earning enough money to catch up on pastdue rent or mortgage payment or even not to fall

further behind, and the tragic fact is that thousands of

District residents are in this predicament through no

fault of their own. But whether or not their landlords

sue them, tenants know when they owe rent, they know

that landlords know when they do not pay their rent,

and they understand that falling behind on their rent

and other lease violations put them at risk of eviction.30

30 The District and amici do not contend that landlords are legally

prohibited from discussing lease violations with tenants. Indeed,

the temporary legislation requires landlords to offer payment

plans to tenants who fall behind in their rent and for tenants to

provide their landlords with evidence that their inability to pay is

due to the pandemic, so tenants behind in their rent will be aware

that their landlords see a problem. Nor does any legislation

prohibit landlords from telling tenants accurately and truthfully

that the legislation permits landlords to start eviction proceedings

if a tenant misses a payment under a payment plan. See District

56a

With respect to the constitutionality of the filing

moratorium, the issue is whether, or to what extent,

the filing moratorium significantly reduces the anxiety

and depression that occupants would otherwise

experience. The defenders of the moratorium have not

offered substantial evidence that the effect is

significant — that the filing of a lawsuit significantly

increases the emotional distress that tenants or other

occupants at risk of eviction already experience. See

Ezell, 651 F.3d at 709 (requiring from the government

“actual, reliable evidence to justify restricting First

Amendment rights based on secondary public-safety

effects”) (cleaned up).

The impact of the filing moratorium on levels of

stress and depression is also reduced by the

moratorium on evictions until the pandemic is over. As

the Court discussed in the preceding section, the

District does not dispute that its own efforts, combined

with those of legal services organizations, tenant

Brief at 31 (“Indeed, property owners may still collect rent in full

from tenants who are able to pay, and may even collect partial

rent payments from tenants who are behind — even from those who

would otherwise face eviction.”). The Eviction Notice Moratorium

Emergency Amendment Act of 2020 (D.C. Act 23-415) prohibits

“any action that is intended to force tenants to leave their housing

or otherwise give up their rights under the law ” This provision is

aimed at constructive evictions, which are already prohibited

under Mendes, 389 A.2d at 787. See 9/21/20 Memorandum from

Councilmember Trayon White Sr. to Chairman Phil Mendelson

(“The purpose of this amendment is to prevent landlords for using

alternative means to constructively evict residents during the

COVID emergency eviction prohibition,” including engaging in

“retaliatory acts such as decreasing services, harassment, and

refusing to renew a lease or rental agreement”). The Court does

not interpret this provision to prohibit truthful, non-coercive

speech. Cf. 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 501

(1996) (plurality opinion) (government may not constitutionally

suppress “truthful, nonmisleading commercial messages”).

57a

organizers, and others, have led to widespread

awareness throughout the community that no evictions

can occur as long as the pandemic lasts, and this

knowledge should alleviate the anxiety or depression

that the filing of a lawsuit might otherwise exacerbate.

Moreover, the District does not dispute that a tenant

would get less comfort from a landlord’s failure to file

an eviction case when the tenant knows that the only

reason why the landlord held back is the filing

moratorium, and that the landlord will file the case as

soon as it is legally able to do so.

3.

The 60-day extension

One final point is equally relevant to the

District’s arguments concerning both move-outs due to

lack of awareness of the moratorium and added

emotional distress caused by the filing of an eviction

case. The District does not establish that extending the

filing moratorium 60 days past the end of the public

health

emergency

advances

an

important

governmental interest enough to justify a significant

restriction on property owners’ right of access to the

courts to initiate a summary proceeding, even though

the District determined that evictions can safely

resume as soon as the public health emergency ends.

The District does not explain why the reasons for

ending the eviction moratorium when the public health

emergency ends do not apply to the filing moratorium

as well.

At the November 30 hearing, the District

contended that the extra 60 days gives tenants

additional time to negotiate a payment plan or to find

employment that would enable them to come up with

the rent that they owe. As a threshold matter, this

rationale applies only to nonpayment of rent cases, and

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it does not justify extending the filing moratorium past

the end of the public health emergency for either (1)

tenants who are current in their rent but violated other

provisions of their lease, or (2) foreclosed homeowners,

squatters, or Other who have no current right to occupy

the property, Even for cases involving non-payment of

rent, the District does not show that the 60-day grace

period justifies the significant additional delay in the

landlords’ ability to regain possession of the rental unit

and get income from it. For example, tenants can

negotiate payment plans during the pandemic, and the

record does not establish that an extra 60 days will

enable a substantial number of tenants to come up with

the money that they could not come up with in the

months between the beginning of the public health

emergency on March 11, 2020 and its end on December

31, 2020 at the earliest.

III.

UNRESOLVED ISSUES

Because the Court concludes that the filing

moratorium violates property owners’ right of access to

the courts, it need not reach a number of issues raised

by property owners. Specifically, the Court does not

address the following issues:

•

Whether the filing moratorium violates D.C. Code §

1-204, which prohibits the District from passing any

law that would violate the Contracts Clause if it

were passed by a state.

•

Whether the filing moratorium violates separation

of powers principles or Title 11 of the Home Rule

Act.

59a

•

Whether the filing moratorium constitutes a taking

that entitles landlords to just compensation.31

•

Whether the repeal and expiration of the emergency

acts that contained the filing moratorium and had

an applicability date of March 11, 2020 means that

filing moratorium is currently applicable only to

eviction cases filed on or after the applicability date

of the current temporary act containing the eviction

moratorium, and whether the filing moratorium

imposes a “penalty, forfeiture, or liability” within

the meaning of the savings clauses in D.C. and

federal codes (see United States v. Stitt, 552 F.3d

345, 353

(4th Cir. 2008); United States v. Obermeier, 186

F.2d 243, 254-55 (2d Cir. 1954)).32

•

Whether the filing moratorium applies to drug

haven or one-strike cases.

•

Whether cases filed after March 11 but before May

13, 2020 when the filing moratorium was first

enacted should be dismissed or stayed if the Court

31 If the filing moratorium effects a taking (and the Court does not

decide whether or not it does), the remedy would be to order the

District to pay just compensation - not to enjoin any continued

taking. See Knick v. Township of Scott, Pennsylvania, 139 S. Ct.

2162, 2179 (2019) (“As long as just compensation remedies are

available - as they have been for nearly 150 years - injunctive

relief will be foreclosed,” and “courts will not invahdate an

otherwise lawful uncompensated taking when the property owner

can receive complete relief through a Fifth Amendment claim”).

32 Because several dozen eviction cases have been filed on or after

June 9, the question of whether the fifing moratorium is

constitutional would not he moot even if the filing moratorium

currently applies only to cases filed after that date.

60a

had upheld the constitutionality of the filing

moratorium.

The Court also does not address an issue raised

by the District and amici concerning service of process

in eviction cases. They contend that even if landlords

could file the cases during the period of the public

health emergency, D.C. Code § 16-1502 prevents them

from serving the summons during this period. See D.C.

Brief at 7. The Court does not decide whether the

provision excluding the period of the public health

emergency from the time calculation constitutes an

effective moratorium on service, or whether it limits

only the Court’s ability to conduct a trial until at least

seven days after the period of the public health

emergency ends.

Another question of law that the Court need not

and does not resolve is whether the statutory

moratorium on debt collection cases applies to claims

for money judgments for unpaid rent in eviction cases

or whether it applies to claims for possession in these

cases. See note 3 above; L&T Rule 3(b)(1)(B) (allowing,

in addition to a claim for possession of real property, a

plaintiff include a claim for “a money judgment based

on rent in arrears and late fees as permitted by law”

and to the extent permitted in Rule 3(b)(1)(C)); cf. D.C.

Code § 16-1111 (“The plaintiff in ejectment is not

required to join his claim for rent or damages with his

claim for the recovery of the land and his omission to

do so does not prevent him from bringing his action for

rent or damages separately.”).33

33 Amici ask the Court to seal all the cases filed on or after

March 11, 2020 in violation of the filing moratorium. Amicus Brief

at 45-47. The Court’s ruling on the unconstitutionality of the

61a

IV.

CONCLUSION

For these reasons, the Court declares and orders that:

1.

The moratorium in D.C. Code § 16-1501(b)

unconstitutionally restricts the right of property

owners of access to the courts to obtain possession of

their property.

The clerk shall schedule initial hearings in any

pending case filed on or after March 11, 2020 as soon

as reasonably possible.

2.

The motion for a declaratory judgment in Case

No. 2020 LTB 008032 is granted for the reasons stated

in this order.

3.

4.

The orders for plaintiffs in cases filed on or after

March 11, 2020 to show cause why the cases should not

be dismissed are discharged.

The motions to dismiss Case Nos. 2020 LTB

008005 and 2020 LTB 8011 are denied.

5.

{2,.

Anthony C. Epstein

Judge

Date: December 16, 2020

filing moratorium makes it unnecessary to address the procedural

and substantive issues raised by this request.

62a

f

r

Statutes

DC Code § 16-1501: Forcible'Entry and Detainer

“During a period of time for which the Mayor has

declared a public health emergency pursuant to [§ 72304.01], and for 60 days thereafter, the person

aggrieved shall not file a complaint seeking relief’

DC Code § 28-3814. Debt collection

“During a public health emergency and for 60

days after its conclusion, no creditor ... shall, with

respect to any debt:

(A) Initiate, file, or threaten to file any new

collection lawsuit;

(B) Initiate, threaten to initiate, or act upon any

statutory remedy for the garnishment, seizure,

attachment, or withholding of wages, earnings,

property, or funds for the payment of a debt to a

creditor”

DC Code § 42-3192.01. Tenant payment plans

“During a period of time for which the Mayor has

declared a public health emergency pursuant § 72304.01, and for one year thereafter ("program

period"), a provider shall offer a rent-payment-plan

program”

“A provider shall approve each application for a

payment plan”

63a

“unless the provider has offered a rent payment

plan pursuant to this section and approved a rent

payment plan pursuant to subsection (d) of this section,

that provider shall be prohibited from filing any

collection lawsuit or eviction for non-payment of rent”

)

64a