San Jose Rent Suspension Proposal Ruled Out Over Constitutional Concerns

A proposal from two San Jose council members that would have canceled rent for 90 days for tenants financially impacted by the coronavirus pandemic has been struck down over concerns about the initiative’s constitutionality.

City Attorney Rick Doyle said via Zoom at Tuesday’s virtual City Council meeting that the idea—proposed by Councilwoman Magdalena Carrasco and Councilman Raul Peralez—would violate a number of state and federal laws.

California’s Costa Hawkins Act bars cities from regulating rents on units exempt from rent control, but Doyle said the larger issue was the so-called takings clause in the U.S. Constitution’s fifth amendment, which prohibits private property from being taken without just compensation.

“Essentially, the landlords are being asked to allow people to occupy their property without just compensation,” Doyle argued. “Clearly the council has the authority to do rent control, but there are parameters as to how far you can go and the concern here in my view is significant because there are a lot of properties that could be impacted and a lot of dollars at stake and the city could be on the hook.”

Peralez and Carrasco opted to withdraw their proposal to instead pursue a citywide rent freeze. “Certainly it’s not an interest of mine to violate the Constitution and the constitutional rights of anybody,” Peralez said. “The interest that myself and council member Carrasco have is in ensuring that we do as much as possible to be able to protect our tenants, especially individuals that right now may be falling through the cracks in regards to the services, the support that’s available.”

Mayor Sam Liccardo agreed.

“I don’t see any harm in a rent freeze during this emergency period,” he said “Frankly, I don’t think there are any landlords out there that are about to hike up rents, but if it provides any additional insurance, I’m happy to support it.”

But before any decisions were made about moving forward with a rent freeze, councilors listened to countless public comments from both tenants and landlords who had waited in the virtual queue for hours to speak.

“Property owners just like renters are equally affected by job losses and economic hardships that we are all living through right now,” San Jose resident Ron Sorisho said. “Shifting the burden from renters to property owners is not a solution.”

Michale Trujillo, an attorney at the Law Foundation of Silicon Valley, challenged Doyle’s legal opinion by citing local government’s broadened emergency and police powers during a crisis. “City Council’s police power applies to the ‘...use of real property,’ and generally, ‘so long as a land use restriction or regulation bears a reasonable relationship to the public welfare, the restriction or regulation is constitutionally permissible,’” Trujilio and his colleague Nadia Aziz wrote in a letter referencing a 2016 court case between the California Building Industry Association and the city of San Jose.

“The broad authority of the police power likewise extends to local governmental authority to enact price controls, including on rent, provided the legislation is ‘reasonably related to the accomplishment of a legitimate governmental purpose,’” Trujilio and Aziz added.

The entire city council, minus Councilman Johnny Khamis who expressed legal concerns about voting on non-agendized items, requested that more information about a potential rent freeze be brought to next week’s Rules and Open Government Committee meeting.

Grace Hase is a staff writer for San Jose Inside and Metro Silicon Valley. Email tips to [email protected]. Follow her on Twitter at @grace_hase.

26 Comments

  1. what a propagandist rag this blog is

    we all waited for hours to talk and Peralez cowered back into his rented hole before any discussion was even had

    this was stated to be unconstitutional from the onset, basically laughed off, and the idiotic quotes from the “law foundation” added to this”piece “just prove this rags bias

    The “law foundation” is a joke that lives off losing eviction cases and pushing agendas that allow them to bill the city hours, not do any good

    what an absolute joke

  2. They are biding their time. This Law Foundation of Silicon Valley will convince the city council to use its police power, aka, become a police state (in this case a police city). They want power. Unmitigated power. Frightening. This is as bad as the county now requiring audits of all business’s PPE over a certain count. Probably preparing to seize all of it.

    • donate to Pacific Legal fund, maybe this over reach will result in a complete repudiation of rent control

  3. Would love to hear more about the Law Foundation. I always thought it was a charity before. Please any more news on it!

    • It is a charity, does critically important work on a whole range of poverty issues. The lawyers there are underpaid because they believe in the work. It’s a legal aid group. The demonization of its is nonsense.

      • Please

        They are a highly bias political organization which agitates for anti property right legislation which takes donation but is also massively funded by the city. The legislation they push is designed to force all interaction between tenants and landlord to litigation. Case in point, causa justa which just cause-a a lot of evictions, like 25000 since it got pushed through by the progressive wing of the city council. Almost all of them could be handled out of court between the landlord and tenant with no eviction on their record, but nooo Peralez and this “foundation” dont want landlords and tenants coming to agreements. So fine, eviction it is and now these tenants will have that on their record for decades.

        But you keep chirpin your brain dead narrative and more po people gonna be miserable, because you cant win an eviction case when you breach the contract and no landlord with a brain is going to pay a lawyer if its a losing case. But this “foundation” wants tax dollars to defend a bunch of cases that dont even belong in court.

        How about you learn what real life is before you start talking about conspiracy theories, clown.

    • The Clinton Foundation is supposed to be a charity, too; but less than 10% of the “donations” it receives are disbursed to charitable organizations. The Clintons bank what little they don’ spend on themselves. And, many of the donors are foreigners, which is illegal; yet the very litigious N.Y. AG does nothing.

  4. Magdalena Carrasco and Councilman Raul Peralez, landlords have bills to pay too!!!!!!!!!!
    Your idea is wrong, and it’s stupid.

  5. I am a liberal Democrat but even I recognize that in an emergency, the government cannot take private property for public use without just constitution. It’s in the 5th Amendment, people. The government can regulate rents but cannot require landlords to provide totally free housing, unless, of course, the government wants to pay for it.

    • What’s the problem? The 1st (freedom of assembly and worship) and 14th (due process) amendments were tossed already. Beach access is prohibited in Santa Cruz County, so there goes Article X of the California Constitution.

  6. To all concerned:

    YOUR SUBJUGATION IS BEING TELEVISED

    You are being told to shelter in place,
    Brothers and Sisters,
    Of all colors and creeds.
    Many of you are not able to go to work,
    Clock in and make an honest buck.
    Many can’t lose themselves on “dope”
    From a dispensary.
    Beer from a favorite watering hole?
    It’s verboten.
    Why?

    Your subjugation is being televised.

    Your subjugation is being brought to you by:
    The My Pillow Guy on Fox
    Ageless Male Max on CNN,
    And a market manipulation interview of
    A notorious hedge fund manager on CNBC.

    Your subjugation is being televised.

    Your subjugation includes daily briefings
    From a bloviating president
    Surrounded by sycophants
    And so-called medical experts.
    The COVID-19 models they tout
    Are consistently a crapshoot.

    Your subjugation is being televised.

    Your subjugation is made worse
    By tone-deaf tweets
    From the rich and famous
    Who can get tested.
    Your subjugation will not let you
    Peacefully assemble.
    Your subjugation will not make
    Hysteria-mongering anchors thinner
    Because your subjugation is being televised,
    Brothers and Sisters,
    Of all colors and creeds.

    There will be no pictures of anyone
    With a Hamilton–
    Let alone memories
    Of Willie Mae “Big Mama” Thornton–
    Pushing a cart down the aisle at
    Costco on the dead run,
    Or trying to slide that 4K plasma TV
    Into a waiting SUV.
    There is a mugshot of the outfielder,
    Who was arrested on unrelated charges–
    Child abuse (if you haven’t already heard)–,
    But no network predicts when
    Law-abiding citizens
    Can move about freely.

    Your subjugation is being televised.

    The Fed has made it rain for corporations,
    But there are no pictures of
    Benjamins on Main Street.
    Don’t count on them anytime soon.
    The Fed has made it rain for big banks,
    But those SBA loans are not coming through.
    Don’t count on them anytime soon, if at all.
    There will be no pictures of legislators
    On both sides of the aisle
    Run out of D.C. on a rail,
    Even though Congress sold you out
    To K Strret.
    There will be no slow motion or still life of
    Elijah strolling through Baltimore.
    Alas, we lost another civil rights icon last year.
    John Lewis, hang in there.

    America has long watched dreck and drivel,
    But someone mentioning a masked singer
    Croon beyond the confines of an idiot box
    Would be damned relevant and refreshing.
    Many more women and men will not care
    About tribal councils on Survivor
    Because people of all colors and creeds
    Will be in the streets and destitute. Period.

    Your subjugation is being televised.

    There will be no highlights on the news
    And no pictures of waxed metrosexuals
    Looking at the man in the mirror.
    The theme song will not be witten by
    Chris Martin, Sting, nor sung by
    Trent Reznor, Tom Waits, Cardi B, or
    Lady Gaga.

    Your subjugation is being televised.

    Your subjugation will not disappear
    After a message about
    A Whitening toothpaste,
    Or any other consumer-driven bull$hit.
    Your subjugation does not go better with
    Starbucks.
    Your subjugation is not caused by
    A virus.
    Your subjugation puts you in
    The backseat.
    Your subjugation is caused by
    Apathy, gullibility, and craveness.

    Wake up, sheeple.
    Is it no longer WE THE PEOPLE?

    Your subjugation is no re-run,
    Brothers and Sisters,
    Of all colors and creeds.

    Your subjugation disappoints me,
    an OCD and immunocompromised person,
    who asks: Where is Patrick Henry?

    You have shown the powers that be
    That you will sacrafice liberty
    At a remote chance of death.

    Your subjugation is being televised.
    Your subjugation is being televised.
    Your subjugation is being televised.

    Your subjugation has gone viral.

    Gadfly M(ichael Patrick O’Conmor)

    P.S.

    JohnMichael, thanks for introducing me to the poetry of Mr. Heron when I was in preschool in ’71. I wonder what he would make of this COVID mess. May he RIP. You’re the best, Papa.

  7. Wow! I am dumbfounded and embarrassed of our City Leaders. I would think that “Constitution 101” would be a requirement when submitting your resume for a council member seat. But, that doesn’t seem to be the case, i.e. Carasco, Peralez in the 90 day rent seize recently ousted. Thank God! These two under grads have never been a landlord! Spare us the time wasted in assembly and go back to school and finish the Constitution 101 Class!

  8. Other cities have more guts. One way around the ’emergency situation’ versus ‘can’t take property’ is accomplished in the following way: As the City of Santa Clare notes, on its eviction moratorium notice, “When the moratorium ends, your landlord may seek unpaid rent – i.e., past due rent that was not paid during the moratorium – but not until 90 days after the moratorium ends.” Apparently the San Jose City Council doesn’t have enough imagination to come up with such a solution. https://tinyurl.com/vh7xach

      • No one is saying otherwise. But landlords evicting people today only add to the homeless population. They won’t find new renters. In 90 or 120 days? Maybe the existing renters, who cannot work, will be working and able to pay them back. Santa Clara’s approach makes more sense, overall.

        • Shoreline, Due to rent control and cause justa, a unit is worth more vacant. More so when the tenant is even paying rent. Tenants simply arent worth the trouble, short term tax rate, and their entitled attitude, as your comment attests.

          One thing you have to focus on, pay your rent, or if you cant pay as much as you can.

  9. Shoreline, has nothing to do with me. When thinking, one has to seperate how you feel about something and what the outcomes are of a particular system. When we are taking about over a million people, one persons choice means nothing. The set of regulation and policies results in certain incentives driving certain outcomes. The anti-humanistic environmentalism inherent in bay area politics creates a set of anti development regulations all housing costs go up, thus the value of property goes up automatically over time as supply is artificially suppressed. When you have a set of rent control regulations, the result is incentives to the tenant to stay as long as possible in the unit as the spread between thier rent and the market rent grows over time. Thus the opposite incentive to the landlord is to not have a tenant long term.

    So in a nimbyistic environment with rent control and authoritarian city council members, the landlord will see return from the entire market appreciating if the unit is vacant, as it can be sold as market rate when empty, as opposed to a long term tenant occupying it far below market rent, this would negatively affect its valuation. It does not help by adding in causa justa, which effectively forces all engagement between tenant and landlord to litigation. So if the unit is vacant, the landlord gets apprecation and doesnt have the headache of Peralez and crew changing the law every year and they dont have to go to court for everything, the result is the unit is worth more vacant.

    What I do versus anyone else is irrelevant, what you will see in real life is what the incentives favor. In this case your unit is worth more vacant, so pay your rent as keep it as long as possible, one market rent is likely to be far higher than you pay and two you will be evicted and no landlord will approve your application. If you want a different reality, vote for people who believe in different incentive structures. Because these only bring misery.

    This isnt about feelz, or me, or any one person, its about one-step thinking city council members, thier supporters, and not understanding how economic incentives work.

      • I understood it. The gov’t is the problem, not the solution. It’s like this:

        • Gov’t is force
        • Good ideas do not have to be forced on people
        • Bad ideas should not be forced on people
        • Liberty is necessary for the difference between good ideas and bad ideas to be revealed

        You could pay $100K for a Harvard Econ education and never learn that.

        You’re welcome.

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