Cite as: 594 U. S. ____ (2021) 1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
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No. 21A8
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PANTELIS CHRYSAFIS, ET AL. v.
LAWRENCE K. MARKS
ON APPLICATION FOR INJUNCTIVE RELIEF
[August 12, 2021]
The application for injunctive relief presented to JUSTICE
SOTOMAYOR and by her referred to the Court is granted
pending disposition of the appeal in the United States
Court of Appeals for the Second Circuit and disposition of
the petition for a writ of certiorari, if such writ is timely
sought. Should the petition for a writ of certiorari be de-
nied, this order shall terminate automatically. In the event
the petition for a writ of certiorari is granted, the order shall
terminate upon the sending down of the judgment of this
Court.
This order enjoins the enforcement of only Part A of the
COVID Emergency Eviction and Foreclosure Prevention
Act (CEEFPA). 2020 N. Y. Laws ch. 381. That is the only
relief applicants seek. See Case No. 2:21-cv-02516, ECF
No. 1 at 9; Emergency Application for Writ of Injunction 7,
40. If a tenant self-certifies financial hardship, Part A of
CEEFPA generally precludes a landlord from contesting
that certification and denies the landlord a hearing. This
scheme violates the Court’s longstanding teaching that or-
dinarily “no man can be a judge in his own case” consistent
with the Due Process Clause. In re Murchison, 349 U. S.
133, 136 (1955); see United States v. James Daniel Good
Real Property, 510 U. S. 43, 53 (1993) (due process generally
requires a hearing).
This order does not enjoin the enforcement of the Tenant
Safe Harbor Act (TSHA), which applicants do not challenge.
2 CHRYSAFIS v. MARKS
BREYER, J., dissenting
2020 N. Y. Laws ch. 127, §§1, 2(2)(a). Among other things,
TSHA instructs New York courts to entertain a COVID-
related hardship defense in eviction proceedings, assessing
a tenant’s income prior to COVID, income during COVID,
liquid assets, and ability to obtain government assistance.
§2(2)(b). If the court finds the tenant “has suffered a finan-
cial hardship” during a statutorily-prescribed period, then
it “shall [not] issue a warrant of eviction or judgment of pos-
session.” §2(1).
JUSTICE BREYER, with whom JUSTICE SOTOMAYOR and
JUSTICE KAGAN join, dissenting from grant of application
for injunctive relief.
The New York Legislature has passed two laws regulat-
ing evictions during the COVID–19 pandemic. The first is
the Tenant Safe Harbor Act, which provides tenants who
have “suffered a financial hardship during the COVID–19
covered period” with a defense in eviction proceedings.
2020 N. Y. Laws ch. 127, §2.2.(a) (McKinney). The second
is the COVID–19 Emergency Eviction and Foreclosure Pre-
vention Act of 2020 (CEEFPA). CEEFPA simplifies the pro-
cess for tenants to invoke financial hardship during the
pandemic as a defense to eviction. Tenants who wish to as-
sert the defense must provide a sworn attestation stating
that they are experiencing financial hardship or health im-
pacts as a result of the pandemic. 2020 N. Y. Laws ch. 381,
pt. A, §4. The attestation pauses eviction proceedings until
the time that CEEFPA expires, namely the end of August
2021. §§2, 4, 6, 8; 2021 N. Y. Laws ch. 104 (establishing
CEEFPA’s August 31, 2021, expiration date). Pending evic-
tion proceedings are stayed, new eviction proceedings can-
not be filed, and outstanding eviction warrants cannot be
executed until that date. 2020 N. Y. Laws ch. 381, pt. A,
§§2, 4, 6, 8. Eviction proceedings may resume after August
31, 2021.
Only CEEFPA is before us. Applicants, five New York
Cite as: 594 U. S. ____ (2021) 3
BREYER, J., dissenting
landlords and one landlords’ association, seek an “extraor-
dinary” form of relief: “an injunction against enforcement of
a presumptively constitutional state legislative act,” Re-
spect Maine PAC v. McKee, 562 U. S. 996 (2010), in circum-
stances where the request for an injunction was denied in
the lower courts, and the court of appeals has yet to issue a
substantive ruling. Moreover, the challenged law will ex-
pire in less than three weeks. Under these circumstances,
such drastic relief would only be appropriate if “the legal
rights at issue [we]re indisputably clear and, even then,
sparingly and only in the most critical and exigent circum-
stances.” South Bay United Pentecostal Church v. Newsom,
590 U. S. ___, ___ (2020) (ROBERTS, C. J., concurring) (slip
op., at 2) (internal quotation marks omitted). I conclude
that this strict standard is not met here, for three reasons.
First, the legal rights at issue in this case are not “indis-
putably clear.” Applicants argue that CEEFPA denies
landlords due process of law because once a tenant submits
an attestation of financial hardship, evictions cannot pro-
ceed and the landlord cannot challenge the tenant’s claim
of hardship, for example, in court. Respondent argues, how-
ever, that the law is best viewed not as a deprivation of the
right to challenge a tenant’s hardship claim but as simply
delaying the exercise of that right—as of now for less than
three weeks until the law expires. After August 31, New
York’s eviction proceedings will be conducted exactly as
they were before CEEFPA’s enactment. Our precedents do
not make it “indisputably clear” that this delay violates the
Constitution. See Sosna v. Iowa, 419 U. S. 393, 410 (1975)
(due process is not offended when “the gravamen of [the]
claim is not total deprivation . . . but only delay”).
Applicants also argue that CEEFPA violates their First
Amendment right against compelled speech, because it re-
quires them to provide their tenants with certain notices.
However, there are persuasive arguments that CEEFPA re-
4 CHRYSAFIS v. MARKS
BREYER, J., dissenting
quires only the dissemination of “purely factual and uncon-
troversial information” in the context of commercial speech
and is therefore authorized by our precedents. Zauderer v.
Office of Disciplinary Counsel of Supreme Court of Ohio,
471 U. S. 626, 651 (1985). Given the arguments on the
other side, I again cannot say that the legal rights in issue
are indisputably clear.
Second, applicants have not shown that critical or ex-
igent circumstances justify our intervention. As I have
said, CEEFPA’s pause on eviction proceedings will expire
in less than three weeks, alleviating the hardship to New
York landlords. Any hardship is further alleviated by pro-
visions of CEEFPA that provide relief from foreclosure for
property owners who own 10 or fewer dwelling units. See
2020 N. Y. Laws ch. 381, pt. B, subpts. A–B. Further, land-
lords’ hardship is alleviated because CEEFPA does not pre-
clude them from seeking unpaid rent and other damages in
a common-law action. Finally, respondent states that New
York is currently distributing more than $2 billion in aid
that can be used in part to pay back rent, thereby helping
to alleviate the need for evictions. See 2021 N. Y. Laws ch.
53, p. 635.
While applicants correctly point out that there are land-
lords who suffer hardship, we must balance against the
landlords’ hardship the hardship to New York tenants who
have relied on CEEFPA’s protections and will now be forced
to face eviction proceedings earlier than expected. This is
troubling because, as noted, New York is in the process of
distributing over $2 billion in federal assistance that will
help tenants affected by the pandemic avoid eviction. See
ibid.; Consolidated Appropriations Act, 2021, H. R. 133,
116th Cong., 2d Sess., 686–692 (2020). Ending CEEFPA’s
protections early may lead to unnecessary evictions. It is
impossible—especially on the abbreviated schedule of an
application for an emergency injunction—to know whether
more hardship will result from leaving CEEFPA in place or
Cite as: 594 U. S. ____ (2021) 5
BREYER, J., dissenting
from barring its enforcement.
Third, the public interest weighs in favor of respecting
New York’s “especially broad” latitude “to act in areas
fraught with medical and scientific uncertainties.” Mar-
shall v. United States, 414 U. S. 417, 427 (1974). The New
York Legislature is responsible for responding to a grave
and unpredictable public health crisis. It must combat the
spread of a virulent disease, mitigate the financial suffering
caused by business closures, and minimize the number of
unnecessary evictions. The legislature does not enjoy un-
limited discretion in formulating that response, but in this
case I would not second-guess politically accountable offi-
cials’ determination of how best to “guard and protect” the
people of New York. South Bay United Pentecostal Church,
590 U. S., at ___ (ROBERTS, C. J., concurring) (slip op., at 2)
(quoting Jacobson v. Massachusetts, 197 U. S. 11, 38
(1905)).
For these reasons, I would not grant relief now, and
therefore respectfully dissent. Of course, if New York ex-
tends CEEFPA’s provisions in their current form, appli-
cants can renew their request for an injunction.