Honey Look, My Ballot Envelope Has a Hole

Last Sunday, I thought of spending at least a part of the weekend to vote. I unpacked the ballots, read the booklet, contemplated the choices to make ... and, since I was planning to vote early by making a deposit to the ballot box, I looked at the envelope too.  Once in the past, I made a mistake while filling in the envelope, and I wanted to make it right this time on the first attempt.

The envelope had circle hole through it, which I thought was there for the purpose of indicating whether the envelope has something in it.  When I folded the ballots and inserted them in the envelope to check how things fit, I noticed that "Trump" choice from the ballot showed up right in that hole, and remained visible. It showed up the same way when I flipped the ballots, because the name and the hole both happened to be centered from both sides of the envelope.  It caught my eye, and made me spend the rest of my weekend thinking if this is an issue worth talking about. I concluded that it does, and, with the hopes that the practice will be avoided for the benefit of all participants involved, I share my thoughts here.

How the legal profession can come to a halt, and what you can do to keep on going

For almost the entire day yesterday, Thomson Reuters Westlaw was down. I am using it since 2009 and this was the first time I have experienced the outage there, overall a pretty good indicator of the things working 99% of the time. Suddenly being leaving me without my research tool, it was a powerful reminder that nothing is guaranteed to be ever-present and available for us online, and with our dependency on it, it is scary to think about the "what if" situation. This made me think of two things: that the progress in our profession could be curbed, and that we should take those contingencies into account if we wish to keep on going.

The requirement of the additional 10-day notice in San Francisco is eliminated (SFRO 37.9(o))

The Covid-era additional requirement for an eviction notice in San Francisco was imposed by the Ordinance 18-22 in early 2022 and remained on the books since then, even though it was trimmed a bit later that year by the San Francisco Apartment Association winning against the application of the additional 10-days notice for an eviction for non-payment of rent. As of September 11, 2024, the entire ordinance now is seemingly on its way out, with SFAA winning its on its appeal.

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

Tenant Relief Act of 2020 - Forms

The Tenant Relief Act of 2020 has passed into law, and its full text is available here. It is rather a lengthy document, because it amends and adds quite a few statutes. A myriad of articles is written on this new law, and I am only adding mine to cover two practical areas of the subject: the forms and the quirky part in the due-date language, regarding the landlord's obligation to give notice.

Bay Area courts re-opening

This week, with the "Stage 2" lessening, finally came the tide of the courts reopening.

[Update May 29] But not the federal bankruptcy courts - - just announced to remain close to public through September (link)

Alameda court is now accepting almost all civil filings, makes hearing reservations, and offers hearings via phone and video remote access: Rule 1.8a and Rule 3.30 (May 7, 2020, version). Appeals and unlawful detainers remain on hold. Alameda court adopted "Blue Jeans" technology for video appearances.
[Update May 20, 2020] - now says the court mostly (yet remotely) re-opens (link).

Contra Costa starts conducting remote hearings on May 18, as its May 5 press-release states.
On May 13, the updated order was issued, it looks like the court reopened on May 26 for physical access to the hearings (essential parties only, no records' department, and wear a mask of course). But there is no mentioning of remote hearings in the order.

Santa Clara court in today's order promised to reopen Law & Motion on May 19 and Appellate division on May 22 (May 8, 2020, order).

Also today, San Mateo published its reopening order, it has several dates there for different purposes, but the general note is that it is reopening during the next 2 weeks for remote hearings. Entered on May 18, an updated order hints at June 12 as the reopening date, with the unlawful detainers pushed further down, at least to June 22 for the earliest trial date.

San Francisco court was silent this week, no new orders since April 30, but the e-filing does go through, as it was going before. Even better, limited UD cases are now also included in the e-filing system. Main operations are still expected to reopen after June 1, with the housing court kicking in after June 22nd.
[May 27 update] - the court opens up mostly (and mostly for remotely handled hearings) on June 1 (link). The emergency is however continued through June 19 (order).

Marin county court also remains closed until May 29 based on its own April 30 order, no word on a sooner reopening there yet. May 26 order confirms the date and provides some more detail, all matters to proceed remotely from June 1 on. Marin court adopted Zoom for video appearances, and those appearances are free of charge.

The above news are welcomed, I was wondering why not to keep the remote hearings and e-filing going, which are mostly available with the help of the CourtCall and e-filing providers (although not each court fully accepts e-files yet). Coming into the court in person is still a risky proposition, but remotely it could be all done, the technology is there. Keeping the courts open is important, and it can be done without physical contact for a large chunk of operations.

But please remain careful and avoid coming to courts in person. Why I am glad the courts are reopening for remote hearings, I don't understand why the lessening is made under the banner of an improving virus situation. Look at the graphs, published by the state (update.covid19.ca.gov). If these were the graphs of some stock, I would say the trends of both the cases and the deaths are still creeping up, maybe slower, but not giving up yet. And while the number of cases' growth is not just due to the spread, but also because of the increased testing, the deaths are only increasing with the virus spread, and they are not declining. We went into the quarantine when there were recorded 3-4-9 deaths per day. We now have the latest spikes and valleys between 45-98 and 39-95 runs, I mean, over 10 times more deaths now from when the complete shutdown was ordered. Remote court operations are great, but when we need to be physically there, remember that there is no vaccine yet, so the risk of infection remains the same, hanging solely on the chance that each court visitor (and each co-commuter on the way to the court and back) had a mask or stayed home.
[update May 27]: we do now have "lows" in 20-19 region, and lower heights too, so the overall "curve" looks flat or even declining a bit, in approximation, but in no way ceasing or falling (i.e., after several days of declining, today's number of deaths was 70).

Intermediate Length Occupancy Ordinance passed

On May 5, 2020, the Board of Supervisors accepted in first reading the fifth version of the new "Intermediate Length Occupancy" regulation (link).

The ordinance amends S.F. Planning Code "to create the Intermediate Length Occupancy residential use characteristic," and implements the consequent protections and enforcement in the Rent Ordinance