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American actor Al Pacino on the set of ...And Justice for All., directed by Norman Jewison. (Photo ... [+] by Columbia Pictures/Sunset Boulevard/Corbis via Getty Images)

Since March, state and local governments had one answer to the income loss created by Covid-19 induced economic shutdowns:ban eviction. But housing problems created by Covid-19 are about lost income, not eviction. But as government shut down economies they sent a signal to rational actors in the economy, You dont have to pay rent! This has createda ticking time bomb of unpaid rent and other problems like difficulty in dealing with residents in rental housing violating lease terms, and creating unsafe conditions and neighbor complaints. Ive talked aboutproperty tax strikes andforbearance, but what about challenging damaging government actions in court?

Its a reasonable question. Our culture has celebrates the big courtroom showdown. Think of the filmInherit the Wind, a portrayal of the Scopes Monkey Trial. And there isThe Verdict, my all time favorite, about a story of a down-on-his luck attorney who finally wins one. And if you feel like I do about the actions of local government, you shouldnt miss lawyer Arthur Kirklands (played by Al Pacino) opening statement in And Justice For All.

The legal challenges are starting like the one in California being pursued by thePacific Legal Foundation(PLF) against judges who shut down eviction court. From the PLF blog describing the case:

Peggy Christensen, a retiree who depends on her rental income, cannot take legal action against tenants who damage the property, harass other tenants, or refuse to pay rent. It also means that landlords like Peggy are forced to turn away considerate renters in need of housing. In making this rule, the Judicial Council has seized policymaking power from the legislature and governor to block landlords access to the courts.

It sounds promising. So why am I so skeptical of legal challenges to profoundly damaging and misguided eviction bans? Heres some thoughts Ive shared privately as these efforts have gotten underway.

Legal Challenges Take a Long Time

Even in normal times, finding a willing plaintiff, gathering financial resources, deciding strategy, and getting a hearing takes months not weeks. It is very unlikely that any legal challenge, no matter how well put together, will bring substantive and satisfying relief this calendar year. Most courts are backed up and bogged down, and usually arguments take time to get scheduled before a judge. It could be well into 2021 when a ruling could be made, even longer if the ruling is appealed.

Expensive

Even a single-issue challenge, narrowly construed with an aggressive timeline is expensive. I've seen legal costs double and triple on small challenges. Lawyers are valuable experts and the good ones don't come cheap. Time is money. Government will make every procedural challenge on standing, venue, and ripeness. Every hour arguing process and keeping a case from being dismissed costs just as much money as fancy Perry Mason lawyering. Local governments have endless legal resources while challengers do not.

Results Uncertain

Civil legal decisions, unlike criminal ones, rarely result in a verdict of "guilty" or "not guilty."Challenges to eviction bans wont be the OJ Trial. When trying to put together an argument, lawyers are asking a question of the law hoping that their argument will result in an interpretation of law favorable to their client. When a Seattle law requiring that housing providers were denied the ability to choose who rents their property, forcing them to rent to the first person showing up, the so called "First in Time (FIT)" law, the Washington State Supreme Court upheld FIT 9-0,a shocking decision. When the Supreme Court of the United Statesdid not hear the case, what resulted, essentially, was a validation of the City's law.This is actually worse than ifa challenge had never been filed. Other cities all over the country now may feel emboldened to do FIT themselves. The FIT law is horrible, and wrong, and few people expected it would survive; it did, and now we have to live with the consequences.

The Challenge Could Fail

What happens when courts start ruling that cities can close the courts and ban eviction? The City of Seattle can argue, "We didn't 'ban' eviction, we just added a defense for people who are evicted; a judge still makes a decision." And this is more or less what City Council President, Lorena Gonzalez (a lawyer) said again and again in the public record. Introducing a new defense still allows eviction, hardly a "taking" under the Fifth Amendment. And remember, judges in Washington hearing challenges to laws like these are politicians, elected by the same people that elected Gonzalez, the Mayor, the Council and yes, Socialist KshamaSawant. And under the robes, they suffer fromSally Field Syndrometoo.

Wrong story

And heres the biggest reason I think these challenges wont help even if some of them are successful and roll back bans and other bad eviction interventions: success just confirms the narrative of the greedy landlords who really aren't suffering but well healed wealthy people collecting passive income from the poor; they have plenty of money to spend on fancy lawyers so they can evict those poor people who lost their jobs through no fault of their own!

Legal Challenges Must Be Part of a Coherent Strategy

I've spent this entire COVID-19 crisis saying the Covid-19 is about income loss among sympathetic residents. Many of us have argued for income replacement and rent relief as the only and compassionate solution. When people in the general public hear the words, Property Rights they think of cowboys with guns protecting a shack in the woods from federal agents. Even though private property and markets are being explicitly challenged by socialists, its going to take time to persuade the average American that the chant, Housing is a Human Right is signal of a dangerous and destructive tide.

So, any legal challenge has to include,

Changing the Narrative

People in the real estate business are as good as people in any other business, but they are often too portfolio driven by, focused on how public policy affects their investment and certain they are smart enough to make it through the storm. Smaller housing providers who earn supplement income with fewer units dont have the resources to challenge the prevailing and dominant greedy landlord myth.

So almost nobody is working on that last bullet, helping people understand that the local apartment building whether a giant one of glass or steel or a little brick fourplex is a business serving local people just like the grocery store or the corner bar; and just like those businesses, rental housing is risky and operates on the margins. No lawsuit, even one with a thrilling and satisfying verdict, can do the hard work of changing the story about housing. Without doing that, housing provider legal efforts are more like My Cousin Vinnie thanTo Kill a Mockingbird.

See original here:
Legal Challenges To Eviction Bans: And Justice For All? - Forbes