By Craig Mordoh, Esq.
On July 11, 2012, representatives from various residential rental property owner groups from across the nation met at the distinguished Cato Institute to begin the process of formulating a strategy to place a constitutional challenge to rent control land – rent stabilization laws before the United States Supreme Court.
This effort is the brainchild of James Harmon, a former prosecuting attorney who gained some recent notoriety in the landlord community by mounting a one-man challenge to the New York Rent Stabilization Law that almost made it to the U.S. Supreme Court.
After an unsuccessful two-year battle to evict a tenant, who could well afford to live anywhere, Jim decided to challenge the constitutionality of the rent law itself. Making a sympathetic plaintiff, Jim received much favorable press coverage and the assistance of many prominent amici curiae; however, after a number of good signs that the Supreme Court might decide to hear his case, the court ultimately chose not to.
Beaten, but not defeated, Jim decided to try and find a way to challenge not just the New York Law, but rent control laws everywhere. Currently rent control in some form exists in relatively few places, New York, New Jersey, Maryland, Washington D.C. and California. Many other states have laws or court’s rulings prohibiting rent control. In one famous instance, the voters of the State of Massachusetts voted to eliminate rent control throughout the state. Amazingly, the elimination of rent control in that state created no upheaval in the tenant community and improved the housing stock in those cities that now had a newly-created free market.
The first step in Jim’s plan was to find the commonalities in each of the laws. For instance, not every law has a state-wide enabling legislation, but every law limits the right to evict tenants.
Other potential areas of inquiry include:
What does a new-construction exemption say about the need for rent control and its effect on the housing market?
Does the emergency situation which formed the rationale for every rent control law still exist after all these years?
If yes, does it still create a lawful basis for rent control and what does its existence say about the efficiency of rent control?
Must an owner have the right to recapture their property?
Once the commonalities are identified, chose the one susceptible to the strongest legal challenge and the file that single-issue Federal lawsuit in each of the rent control localities. This would result in rent control challenge in five different federal circuits. It is anticipated that the appellate level would require a review by the Supreme Court.
I attended this meeting on behalf of the California Apartment Law Information Foundation as well as the Apartment Associations of Greater Los Angeles. In addition, there were representatives of the National Apartment Association, the Institute for Justice, New York University School of Law and representatives from local owner’s groups from all of the affected jurisdictions.
The attendees were dunned the “Madison Group” in honor of James Madison, our fourth President, who stated “commercial shackles are generally unjust, oppressive, and impolitic.” This may be the most concise, yet accurate, description of rent control ever.
Following the meeting, the enthusiasm of the participants was high and a follow-up national teleconference was scheduled for September. CALIF and AAGLA will continue to participate in this effort and provide periodic reports to this magazine.
Mordoh is Senior Attorney of the California Apartment Law Information Foundation (CALIF). Since its inception, CALIF has pursued its dual goals of providing an informational base for landlords and tenants on the workings of landlord-tenant law in California and challenging state and local municipalities when they take actions that infringe upon the constitutionally guaranteed property and civil rights of California residents. CALIF is qualified to receive tax-deductible contributions under IRC Section 501(c)(3).