Alameda County and Oakland City eviction moratoria survived the court challenge

Federal District Court, Judge Laurel Beeler, issued an order on November 22, 2022, denying a challenge to the eviction moratoria of the Alameda County and City of Oakland (cases Nos. 3:22-cv-01274 and 3:22-cv-02705). Links to those two ordinances are here and here.

In my view, the order is wrong, insofar it is based on a finding that each moratorium is "temporary." There is no practical indication in either moratorium that it will ever expire, except if their respective legislators (County's Board of Supervisors and Oakland's City Council) would some day have a whim to declare the Covid health emergency to be over. This makes it uncertain enough to wonder, what are the limits of declaring an "emergency." In the state concept, it is 180 days. (Gov-t Code § 11346.1, subd. (e).) I don't see why on the municipal level it should be indefinite, literally meaning that the end of the measure's term is not defined. It might be "temporary" in the court's view, we are all temporary here, but it is still indefinite.

What would suggest to the local legislators to declare the end of the emergency, what are the measuring factors? We don't know.

The employment rates are back to the pre-Covid times, with the unemployment historically low and the labor force still needing more people. (From the U.S. Bureau of Labor Statistics.) Payrolls and wages are reported to "blow past expectations," despite the interest rate hikes. Alameda county's unemployment is at 2.80%, it is right where it was before Covid (2.90% in January 2020). The same story is in the city of Oakland. (Around 3.50% now, 3.70% in January 2020.)  The Covid cases' rates are low in the county. So low that Alameda rescinded the mask mandate in June of 2022. Oakland did it in November.

The court has to consider the actual state of affairs in deciding whether the declared emergency exists. It had been held that "while the declaration by the Legislature as to the existence of the emergency was entitled to great respect, it was not conclusive; and, further, that a law ‘depending upon the existence of an emergency or other certain state of facts to uphold it may cease to operate if the emergency ceases or the facts change even though valid when passed.’ It is always open to judicial inquiry whether the exigency still exists upon which the continued operation of the law depends." (Home Bldg. & Loan Ass'n v. Blaisdell (1934) 290 U.S. 398, 442, emphasis added, citing Chastleton Corp. v. Sinclair (1924) 264 U.S. 543, 547–548 ["a Court is not at liberty to shut its eyes to an obvious mistake, when the validity of the law depends upon the truth of what is declared. (citations). And still more obviously so far as this declaration looks to the future it can be no more than prophecy and is liable to be controlled by events. A law depending upon the existence of an emergency or other certain state of facts to uphold it may cease to operate if the emergency ceases or the facts change even though valid when passed"].)

Presumably, these are the same legislators who continue to insist the moratorium should remain in place because the Covid emergency remains a threat. How they reconcile the labor data, the infections' rates, and their own decisions on other aspects of governing the same issue in the same county/city (e.g., the mask mandate), is hard to imagine. What is easier to imagine is what drives those policies to remain in place––the constituency. More to the point--what stops the court to revisit the basis for the emergency?

The danger with this upholding of a  indefinite-temporary policy goes beyond just the city of Oakland and county of Alameda and beyond the recent Covid pandemic. It becomes a dangerous precedent, as the vote-hungry legislators from other localities will take a note on this precedent and weaponize it to buy some votes on the cheap. It doesn't even have to be even Covid-related. Any future challenge a community might face could be used as a pretext to stop the operation of applicable statutes and prevent the contracts from being enforced, all without declaring any particular time-frame or conditions, upon which this imposing emergency legislation would sunset. It could remain in force just because some XYZ said so. I hope the appeal of this decision is coming up soon.

while the declaration by the Legislature as to the existence of the emergency was entitled to great respect, it was not conclusive; and, further, that a law ‘depending upon the existence of an emergency or other certain state of facts to uphold it may cease to operate if the emergency ceases or the facts change even though valid when passed.’ It is always open to judicial inquiry whether the exigency still exists upon which the continued operation of the law depends.

Home Bldg. & Loan Ass'n v. Blaisdell (1934) 290 U.S. 398, 442

 

that a law ‘depending upon the existence of an emergency or other certain state of facts to uphold it may cease to operate if the emergency ceases or the facts change even though valid when passed.’ It is always open to judicial inquiry whether the exigency still exists upon which the continued operation of the law depends.

Home Bldg. & Loan Ass'n v. Blaisdell (1934) 290 U.S. 398, 442