Another challenge is filed to Judicial Council’s eviction ban

The Judicial Council overstepped its authority when it halted evictions, according to a complaint filed in Kern County Superior Court on Monday.

The Pacific Legal Foundation is representing a pair of landlords challenging the policy, instituted April 6 as part of a series of Council emergency orders designed to address the coronavirus pandemic. Christensen v. California Judicial Council, case number pending (Kern Super. Ct., filed June 15, 2020).

"Emergency Rule 1 forces landlords to turn away conscientious individuals seeking housing, in order to continue to house tenants who harass neighbors, conduct crimes on the premises, damage the property, and refuse to pay rent," Foundation Attorney Michael A. Poon, in a news release. "This is not only grotesque policy, it is unconstitutional."

A spokesperson for the Judicial Council declined to comment "on pending litigation." However, the wording of Emergency Rule 1, which suspended unlawful detainer and foreclosure, centers on the court's role in these proceedings.

"A court may not issue a summons on a complaint for unlawful detainer unless the court finds, in its discretion and on the record, that the action is necessary to protect public health and safety," it reads in part.

The complaint filed by Poon and two other Foundation attorneys -- Damien M. Schiff and Oliver J. Dunford -- leads by citing a widely-criticized aspect of the rule: it does not consider whether the tenant has the ability to pay.

"The rule creates the perverse incentive for all tenants, whether they face financial hardship or not, to refuse to pay their rent during the crisis," the complaint stated. "And it immunizes from eviction even tenants who create nuisances, damage property, conduct illegal activity, or violate lease terms."

The plaintiffs based their complaint in three alleged violations of the California Constitution. They say the rule violates the separation of powers doctrine by appropriating a policy function that belongs to the Legislature and governor. The complaint also claims the rule violates existing statutes outlining the procedure around evictions.

Finally, they say, the Judicial Council "may only 'adopt rules for court administration, practice and procedure.'" Under this claim, they say the rule deprives property owners "of a substantive right...destroying the property owner's right to re-entry."

The plaintiffs are Peggy Christensen, 63, of Mojave and Peter Martin, 59, from Arcata. Each claims they are being prevented from removing a problem tenant -- in Martin's case, one who is facing drug and firearms charges.

On Thursday a landlord's group sued the City and County of Los Angeles in an attempt to overturn a local eviction ban. That complaint made claims under the California Constitution, but also claimed violations of the Fifth and Fourteenth Amendments. Apartment Association of Los Angeles County, Inc. v. City of Los Angeles, 2:20-cv-05193 (C.D. Cal., filed June 11, 2020).