By William Patrick | The Center Square
When Gov. John Bel Edwards issued an executive order suspending legal deadlines in the aftermath of Hurricane Ida, he also implemented a statewide eviction moratorium without expressly stating it.
“Yes, evictions are included in the proclamation,” the governor’s office confirmed in an email.
The order was issued amid widespread power outages and storm damage in southeast Louisiana. Referring to affected residents, Edwards said in a news release, “We need for them to be focused on recovery and not whether they will be held to a court deadline.”
The expansive exercise of executive powers – first for COVID-19 and now for natural disasters – is a cause for concern, according to some legal experts.
“No one would question that a hurricane constitutes an emergency, and I would think that court proceedings constitute state business. So he is probably acting within the limits of his conferred emergency powers,” said Luke Wake, an attorney at the Pacific Legal Foundation.
“But I think we ought to be concerned about Governors invoking these sort of emergency powers on a recurrent basis, especially when done on a statewide basis where in fact the affected areas may be more localized,” he said.
Wake and the Pacific Legal Foundation, a public interest law firm, previously represented a group of Louisiana landlords who challenged the federal eviction ban.
Before Hurricane Ida, Louisiana property owners were subjected to the eviction moratorium for nearly a year before the U.S. Supreme Court ruled the coronavirus-related policy was unconstitutional. The moratorium had been extended multiple times but was struck down Aug. 26.
Ida made landfall in southeast Louisiana on Aug. 29, and Edwards’ executive order effectively created another statewide eviction moratorium until Sept. 24, though it may be extended if deemed necessary. Edwards since has declared a state of emergency for Tropical Storm Nicholas.
Edwards, a Democrat, had praised the Biden administration’s eviction moratorium, which was implemented through the Centers for Disease Control and Prevention. The governor’s office publicized the Louisiana Rental Assistance Program as providing funding relief for renters and landlords during the eviction ban.
The state rental assistance program, however, has issued a fraction of available funds. As of Wednesday, $29.2 million of $161 million has been disbursed since March.
https://3ec22163e5179b9ab8b5daf9a107f933.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.htmlLandlords were saddled with taxes, insurance premiums, mortgage payments and repair costs since September 2020, regardless of whether tenants paid rent. The new statewide eviction freeze could present additional problems.
The order applies to legal proceedings in all state courts, administrative agencies and boards. It invokes emergency powers under the state Homeland Security and Emergency Assistance Disaster Act and suspends deadlines relating to Louisiana’s Code of Civil Procedure.
Under Louisiana law, landlords must follow specific civil procedures when attempting to evict a tenant, such as obtaining a court order.
According to Louisiana Realtors, a Baton Rouge-based real estate association, suspending legal deadlines undermines a landlord’s ability to obtain an eviction order from a court in all 64 parishes until the suspension is rescinded.
“However, the suspension of deadlines applies to legal proceedings and would not prohibit the posting of an eviction notice or the commencement of legal action to obtain an eviction order,” the organization said after the governor’s executive action.
Confusion occurred last year when Edwards suspended legal deadlines because of the COVID-19 pandemic. The Republican-controlled Louisiana Legislature passed Act 162 in response. It allows for deadlines that would have expired during the suspension period to expire on the date immediately following the end of the suspension period.
“That Act was specific to the Governor’s orders issued in response to COVID-19 but would likely be used as guidance in this instance as well,” Louisiana Realtors said.
The question of when the temporary eviction block will be lifted is important to landlords and renters. Previous executive orders, such as Edwards’ statewide indoor mask mandate, have lasted longer than the initial timeline.
Edwards implemented the statewide mask mandate Aug. 2. It is still in effect despite an initial Sept. 1 expiration date.
Louisiana congressman Troy Carter, a Democrat representing New Orleans, has been an outspoken proponent of the federal eviction moratorium. He also urged Edwards to suspended evictions after Ida.
“Without a statewide moratorium, we face a situation where people in half the state are displaced after a hurricane and people in the other half of the state face being displaced during a raging pandemic,” he wrote in a letter to the governor.
“While I will continue fighting in Congress to extend the national moratorium, I hope you will do everything you can on the state level to protect Louisianans now,” Carter wrote.
The Pacific Legal Foundation filed two lawsuits against the national moratorium; one arguing the ban on evictions lacked statutory authority and another claiming the policy violated a constitutional separation of powers.
Wake said state-level emergency powers have the potential for similar overreach.
“In any event the real opportunity for abuse comes with orders that are issued on an indefinite or continuing basis, as we saw in many states through the pandemic,” Wake said. “That is why [Pacific Legal Foundation] has urged state legislatures to consider emergency management reforms to impose firm temporal limits on emergency powers as the best check against autocratic rule.”