We should suspend jury trials for unlawful detainer cases

The prevailing moratoriums against collection of current rent and evictions unmistakably run afoul of constitutional rights, e.g., the impairment of contract, U.S. Constitution Article 1, Section 10, and taking without just compensation, Fifth and 14th Amendments. Drastic emergency measures, however, are said to be legalistically sound for protection of the public during the COVID-19 pandemic. While that may be a debatable point from a medical perspective, there are commercial contraindications that should be considered in the interest of fairness and balance.

Many persons outside the residential housing industry may not be aware that parties to an unlawful detainer proceeding are statutorily entitled to trial by jury. Code of Civil Procedure Section 1171. It is not constitutional. Were it not for that statute, there would be no right to jury trial. As with many other important cases that move through the judicial system, unlawful detainer cases could be satisfactorily decided by judicial officers without the delay and expense of juries.

The impact of moratoriums on housing providers can be severe, particularly at the "mom and pop" level, where small landlords rely on rent to pay taxes, mortgages and support themselves. On the other hand, out of work tenants have a green light to stay put without payment of rent. Even after moratoriums are lifted, many won't budge unless sued.

Here is where there is an opportunity for the authorities to balance the equation. Tenants sued for unlawful detainer customarily request trial by jury. Only a scant few are serious about it. But landlords have no choice but to prepare with their professional resources for jury trial. Eventually, not unexpectedly, landlords become exhausted. They buy their peace with settlements on generous terms in consideration of tenants waiving trial and agreeing to restore possession to the landlord some months later.

When moratoriums are lifted, the courts will be swamped with unfinished and new eviction cases. As usual, tenants can be counted upon to assert the statutory right to jury trial in order to postpone the day of reckoning. It will result in additional unjust expense to landlords. Copious jury demands will put great pressure on the courts, require jurors to social distance, and force eviction cases to stand aside for criminal trials which take priority.

If moratoriums justify suspension of cornerstone constitutional rights, shut down of nonessential commercial activity and order the public to shelter in place, why cannot the authorities temporarily suspend the right to jury trial for unlawful detainer cases arising before, during and for a reasonable time after moratoriums are lifted?

Suspension of jury trials takes nothing away from tenants except the problematic opportunity to drive hard bargains for generous settlements on top of advantages they have already derived from moratoriums. Tenants may have their cases decided by judicial officers, who are assumed to be fair decision makers, during the time that application of CCP Section 1171 is held in abeyance. In a fair and balanced mode of governance, that is what should happen. 