As documented in numerous studies, the brunt of COVID-19’s impact has fallen most heavily on racial and ethnic minorities who have suffered higher hospitalization and mortality rates as well as unprecedented levels of unemployment as a consequence of the virus and government efforts to contain it. As a result, many low-income tenants—Black and Latinx, disproportionately—are having difficulty paying their rent.

In New Jersey, hundreds of thousands of residents, including a disproportionate number of minorities, face this grim reality and may soon become at risk of eviction. One July 2020 study predicted that approximately 450,000 households—40% of all New Jersey renter households—would be unable pay rent in August, and that nearly half of Black New Jersey renter households would be unable to do so—a higher percentage than for any other race or ethnicity. It is estimated that between 400,000 and 560,000 New Jersey renter households are at risk of eviction, which is forecasted to culminate in New Jersey with an estimated 600% increase from pre-COVID-19 levels.

New Jersey’s working families of color will be disproportionately hurt by this looming eviction and homelessness crisis. Without protection against evictions, these families can be expected to lose their homes at comparatively high rates, aggravating the problem of homelessness which already disproportionately affects minorities in New Jersey where, even before the pandemic, nearly half of homeless individuals were Black.

In light of these sobering facts and devastating injustices, Proskauer was proud to draft a motion for leave to file an amicus brief in defense of tenants’ housing rights on behalf of proposed amici curiae Fair Share Housing Center, Lawyers’ Committee for Civil Rights Under Law, Housing & Community Development Network of New Jersey, National Association for the Advancement of Colored People – New Jersey State Conference, and the New Jersey Latino Action Network.

The proposed amicus brief, filed in the U.S. District Court of New Jersey, argues that the court should uphold Governor Philip D. Murphy’s issuance of Executive Order 128 (E.O. 128) on April 24, 2020 as a constitutional and desperately needed exercise of the State’s power to protect its citizens in light of the COVID-19 pandemic. Under E.O. 128, for the duration of the pandemic, tenants are allowed to credit their security deposits toward rent payments that are currently owed, as a means of avoiding evictions while simultaneously helping landlords to meet their own financial obligations.

E.O. 128 is a critical protective measure intended to shield New Jersey residents from mass evictions due to COVID-19 related unemployment that would disproportionately harm a tremendous number of tenants of color, with enormous and far-reaching consequences for public welfare. For example, it is difficult for evicted or homeless individuals to maintain steady employment, which frequently results in job loss. Eviction can also negatively affect one’s credit score, thereby making it more difficult to get approved for future housing. For these reasons and more, proposed amici curiae urged the court to find that E.O. 128 is an appropriate exercise of gubernatorial authority that promotes the welfare of New Jersey’s most vulnerable residents and, in so doing, advances a legitimate and significant public purpose.

The Proskauer pro bono team included partners Joshua Newville and Joseph O’Keefe, associates Andrew Sherwood, Mark Linscott, and Sarah Cork, and project assistant Christian Cordova-Pedroza.

UPDATE: On March 22, 2021, the U.S. District Court for the District of New Jersey issued an opinion and order granting the defendants’ motion to dismiss the plaintiffs’ suit seeking to enjoin Executive Order 128. In so doing, the Court noted it had received and reviewed the amicus brief Proskauer had filed, which asserted that the pandemic has and will continue to disproportionately impact working families of racial and ethnic minorities, which will likely lead to a disproportionate amount of minorities suffering from their inability to pay rent, due to no fault of their own.