Court Unfairly Rejects Ellis Relocation Law

by on October 7, 2015

For non-attorneys wondering how San Francisco Superior Court Judge Ronald Quidachay could have struck down San Francisco’s latest measure increasing Ellis Act relocation payments, the answer is simple: he used a legal standard that allows judges to throw out any restriction on Ellis evictions they don’t like.

The judicial game works like this.

An early court ruling on the Ellis Act invented a legal standard that says a local measure cannot “impermissibly interfere” with an owner’s Ellis Act rights.  This critical phrase, “impermissibly interfere,” appears nowhere in the statute.  Instead, it was a test inserted into the Act by the courts so that judges could claim to have a legal basis for throwing out laws they opposed.

Since that time, a long series of laws that would have protected tenants from Ellis evictions have been struck down by courts all on the grounds that they “impermissibly interfered” with the Ellis Act.  This legal chicanery means that courts simply rewrote the Ellis Act to help real estate speculators at tenants’ expense.

This may sound harsh, but it’s true. And the judicial duplicity around the Ellis Act is even worse.

That’s because while courts were inserting a new legal standard into the Ellis Act they simultaneously were ignoring what the Act actually said. A prime example is the Ellis Act language saying that the law did not  “interfere with local government authority over land use.”

Despite this plain language, a Court of Appeal faced with a local law stopping the demolition of an apartment building ruled that anti-demolition ordinances were not “land use” laws under the Ellis Act. What could a demolition law be except for a land use law? Who knows. But it didn’t matter because that’s how the Court interpreted the Ellis Act.

Think about the moral values of judges who falsely interpret a law to allow the demolition of housing and the eviction of tenants. Yet sadly, such judges have been common in California for the past three decades.

Fortunately, we had a political giant in the California Legislature willing to overturn some of these bad court decisions. In 1999,  Senator John Burton came to our rescue with new state law amendments reversing this court-invented right to demolish building under the Ellis Act. Think how many hundreds if not thousands of units would have already been destroyed but for Burton’s action (and credit to then Governor Gray Davis for signing Burton’s bills)

Judges Strike Laws They Don’t Like

The genius of the “impermissibly interfere” standard is that it allows judges to freely strike down any restriction on Ellis evictions they don’t like. The “impermissibly interferes” language is completely subjective; it is a fake legal standard lacking any objective measure.

Judge Quidachay used this subjective standard in throwing out higher Ellis relocation payments. He stated, “Ordinance 68-15 places several impermissible and unauthorized obstacles before a landlord who seeks to invoke the Ellis Act to exit the rental market, and it is therefore preempted by the Ellis Act.”

Why are higher payments “impermissible” and “unauthorized”? Because Judge Quidachay says so.

The Ellis cases are part of a long and disturbing history of courts striking down laws they simply don’t like.

The classic example is Lochner v. New York (1905). The Supreme Court in Lochner threw out a state law limiting bakers’ work hours to ten on the grounds that the law constituted an “unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract.” Lochner was among a slew of decisions that threw out health, safety, and social welfare legislation on the grounds of “substantive due process.”

Substantive due process is a legal phrase for saying that as judges, we don’t like the substance of this law. “Impermissible interference” with Ellis Act rights is cut from the same cloth—it is a completely subjective standard that cloaks a judge’s dislike for a law in legal jargon.

Judicial Brutality

Many now impacted by Ellis evictions in San Francisco and Los Angeles do not know the sordid history of the courts’ rewriting of the Ellis Act. Courts wrongfully expanded its provisions while at the same time construing the statute to ignore the specific protections inserted into the law by legislators fearing the misuse of the law that has occurred.

In 1999, San Francisco Mayor Willie Brown signed into law a measure that should have put Ellis speculators out of business for good. It would have required Planning Commission approval for converting rental housing to ownership housing.

Considering that Planning Commission approval is required for virtually every land use change in San Francisco, this law should have been upheld without much debate. But with judges hellbent on maximizing speculators ability to evict vulnerable tenants, the Brown measure was deemed an “impermissible interference” and struck down.

San Francisco is a progressive city, but during my nearly 33-year legal career it has seldom had civil law and motion judges that interpreted landlord-tenant laws fairly for tenants. For every Judge Pollak (now on Court of Appeal) or Judge Cahill (who left the bench for JAMS), there are many more Judge Robertson’s and Judge Goldsmith’s whose agendas are in lockstep with landlords.

The courts’ striking down of almost any law designed to reduce Ellis evictions or mitigate their impact shares the same brutality toward the vulnerable as the Lochner rulings and their progeny.

While most people see Ellis speculators as a problem, these judges see them as heroes for challenging restrictions on property rights. That this anti-regulation passion dominates even during the current housing crisis shows just how far our judiciary is out of touch with human concerns and legal integrity.

Randy Shaw is Editor of Beyond Chron

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Randy Shaw

Randy Shaw is the Editor of Beyond Chron and the Director of San Francisco’s Tenderloin Housing Clinic, which publishes Beyond Chron. Shaw latest book is Generation Priced Out: Who Gets to Live in the New Urban America. He is the author of four prior books on activism, including The Activist's Handbook: Winning Social Change in the 21st Century, and Beyond the Fields: Cesar Chavez, the UFW and the Struggle for Justice in the 21st Century. He is also the author of The Tenderloin: Sex, Crime and Resistance in the Heart of San Francisco

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