On January 9, 2023, Democracy Forward represented the Appleseed Foundation, Alliance for Justice, and Western Center on Law and Poverty in a friend of the court brief submitted to the Supreme Court of the State of Washington in Gonzales v. Inslee. The brief urged the court to uphold a Court of Appeals ruling that Washington’s Eviction Moratorium in effect during the COVID-19 pandemic did not constitute a physical taking of private property under the Washington Constitution.
Two federal courts – the Eastern District of Washington and the Western District of Washington – have already rejected arguments made by landlords that the Eviction Moratorium constitutes a physical taking.
Washington’s Eviction Moratorium, in effect from March 18, 2020, through June 30, 2021, was instituted by Governor Jay Inslee in the midst of the COVID-19 pandemic to save lives. It protected vulnerable people from COVID-19 and preserved valuable resources in combating the disease. Research has shown that unhoused people are at increased risk of contracting SARS-CoV-2 and of developing severe COVID-19 symptoms relative to housed people.
The brief explains that state and local governments have a profound interest in ensuring housing stability, which is crucial not only to the health and welfare of individual tenants, but also to local economies.
Those challenging the Eviction Moratorium in court argue that the Moratorium violates the Takings Clause of Washington’s State Constitution because it constitutes a physical taking of property without compensation. Washington courts interpret that clause to be consistent with the analogous provision of the United States Constitution. Our brief details why the Eviction Moratorium is legal and does not constitute a physical taking of private property under federal (and, thus, Washington) law. Indeed, regulations of the landlord-tenant relationship – like the Eviction Moratorium – are a core and historically recognized power of local governments, and temporary restrictions on owners’ right to evict tenants have been upheld as non-takings for over a century. The United States Supreme Court “has consistently affirmed that States have broad power to regulate housing conditions in general and the landlord-tenant relationship in particular without paying compensation for all economic injuries that such regulation entails.” Furthermore, the Ninth Circuit, which covers Washington, and courts across the country consistently reject property owners’ arguments that tenant-protective regulations constitute physical takings, and numerous courts have sustained other state and local governments’ eviction moratoriums during the ongoing COVID-19 pandemic.
The brief also explains why the U.S. Supreme Court’s recent Cedar Point decision, a decision often misused by those seeking to undermine affordable housing, supports the conclusion that the Moratorium does not constitute a physical taking.