Well, that didn’t take long: as we surmised back when the CDC first issued its order halting residential evictions until the end of the year due to COVID (see “How Can? U.S. DHS: National Eviction Moratorium (Roscoe Filburn Could Not Be Reached For Comment),” the order has resulted in a complaint in
Fed Ct: “[T]he stay-at-home and business closure components of Defendants’ [COVID] orders violate the Due Process Clause” (Applying Rational Basis Review!)
As if to respond to a sibling federal court’s recent order upholding a covid-reaction shut down orders, the U.S. District Court for the Western District of Pennsylvania’s opinion in County of Butler v. Wolf, No.2:20-cv-00677 (Sep. 14, 2020) reaches an entirely different conclusion:
The fact is that the lockdowns imposed across the United States
NY Fed Ct: “When faced with a society-threatening epidemic, state officials are empowered to … infringe federal constitutional rights. They may generally do so at their sole discretion and for so long as is necessary.”
The District Court’s bottom line in Lukes Catering Service, LLC v. Cuomo, No. 20-CV-1086 (Sep. 10, 2020)? The New York governor’s emergency orders aimed at coronavirus “imposing quarantines, mandating workforce reductions, closing schools, requiring face-coverings, and restricting activities of all types,” are not takings of the businesses of event, banquet, and catering services that
This Morning: Michigan Supreme Court Hearing Arguments: Governor’s Covid Emergency Powers Expired (And A Long-Term Pandemic Isn’t An “Emergency”)
If you are available at 9:30 a.m. Eastern Time today (Wednesday, September 9, 2020), tune in to the Michigan Supreme Court’s YouTube channel and watch and listen live as the court hears arguments in a case challenging the governor’s exercise of emergency powers to respond to the covid epidemic.
The case started in U.S. District
This Thursday, Sept 10: “Governmental Emergency Powers and the Constitutional Implications Arising from Pandemic Orders” (Free to ABA Members)
Please join us and a panel of expert speakers including our friend and colleague Tony Della Pelle (see the flyer for the complete list), this Thursday, September 10, 2020 at 1pm Eastern Time for the ABA-produced webinar “Governmental Emergency Powers and the Constitutional Implications Arising from Pandemic Orders.”
Free to ABA members,
How Can? U.S. DHS: National Eviction Moratorium (Roscoe Filburn Could Not Be Reached For Comment)
In Hawaii we employ a phrase, “how can?” as a shorthand response when you’re wondering how something can be. It’s easy, short, and more efficient than saying “I’m sorry, I don’t understand how you think you can accomplish this.”
Thus, “how can?” was our first response when the U.S. Department of Health and Human Services’
Mass Super: State’s Temporary Eviction Moratorium Is Not Likely A Taking
Here, the ruling of the Massachusetts Superior Court (Suffolk County) in Matorin v. Commonwealth of Massachusetts, No. 2084CV01334 (Aug. 26, 2020).
The short story is that the court denied the plaintiffs’ motion for a preliminary injunction on the grounds that they were not likely to succeed on the merits of their as-applied regulatory takings
New Challenge: Hawaii Governor’s COVID Orders Are Pau Already
Like a lot of other jurisdictions, Hawaii’s emergency response statutes contain an “automatic termination” limitation on the governor’s or a mayor’s declaration of emergency:
A state of emergency and a local state of emergency shall terminate automatically sixty days after the issuance of a proclamation of a state of emergency or local state of emergency
Federal Court: No Takings Claim To Enjoin COVID Shut-Down Order
Here’s the latest order in one of the various challenges to coronavirus-related shut down orders. (See here, here, here, here and here, for example.)
In Xponential Fitness v. Arizona, No. CV-20-01310 (July 14, 2020) (unpub.), the U.S. District Court for the District of Arizona denied preliminary relief in a case which sought an injunction against the Arizona governor’s orders. The complaint including a takings claim among others (contracts clause, due process, equal protection, as well as state law claims). The only relief sought for the taking was an injunction, not just compensation.
[Sidebar: interestingly, there’s no mention of the Eleventh Amendment, despite the State of Arizona being the lead defendant in the case; we haven’t taken a dive into the docket to see if the State consented, or objected elsewhere to being haled into federal court.]
To the court, that was fatal to the likelihood of the plaintiffs’ success on the merits. Here’s the entirety of the court’s takings analysis:
Plaintiffs’ Fifth Amendment takings claim cannot support their request for injunction relief. See Knick v. Twp. of Scott, Pennsylvania, 139 S. Ct. 2162, 2176 (2019) (“As long as an adequate provision for obtaining just compensation exists, there is no basis to enjoin the government’s action effecting a taking.”). “The Fifth Amendment does not proscribe the taking of property; it proscribes taking without just compensation.” Williamson Cty. Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 194 (1985), overruled on other grounds by Knick, 139 S. Ct. 2162. Thus, even if the June 29, 2020 Executive Order did violate Plaintiffs’ Fifth Amendment rights, Plaintiffs would not be entitled to injunctive relief because damages are the proper remedy for a taking. See Bridge Aina Le’a, LLC v. State of Hawaii Land Use Comm’n, 125 F. Supp. 3d 1051, 1066 (D. Haw. 2015), aff’d sub nom. Bridge Aina Le’a, LLC v. Land Use Comm’n, 950 F.3d 610 (9th Cir. 2020).
Slip op. at 16.
Before we move on, a comment. We’re not sure that just compensation should be considered the only remedy for a taking. First, we’ve seen cases in which the Supreme Court has recognized that an award of just compensation is not the sole way to raise a takings claim. You can raise it as a defense to some government action (“you can’t do X, government, because to do X without compensation would be an unconstitutional taking” – this is more like a rule that government cannot act except in conformity with the constitution than an actual “takings” claim for compensation). The raisin case (Horne v. USDA) is a good example. Another is Kaiser Aetna v. United States, 444 U.S. 164 (1970), where the property owner raised a similar argument in response to the Corps of Engineers’ district court lawsuit under the Rivers and Harbors Act.
Or, you might raise a takings argument affirmatively by declaratory judgment:
MR. JUSTICE REHNQUIST suggests that appellees’ “taking” claim will not support jurisdiction under § 1331(a), but instead that such a claim can be adjudicated only in the Court of Claims under the Tucker Act, 28 U.S.C. § 1491 (1976 ed.). We disagree. Appellees are not seeking compensation for a taking, a claim properly brought in the Court of Claims, but are now requesting a declaratory judgment that, since the Price-Anderson Act does not provide advance assurance of adequate compensation in the event of a taking, it is unconstitutional. As such, appellees’ claim tracks quite closely that of the petitioners in the Regional Rail Reorganization Act Cases, 419 U. S. 102 (1974), which were brought under § 1331 as well as the Declaratory Judgment Act. See App. in Regional Rail Reorganization Act Cases, O.T. 1974, Nos. 74-165, 74-166, 74-167, 74-168, p. 161. While the Declaratory Judgment Act does not expand our jurisdiction, it expands the scope of available remedies. Here, it allows individuals threatened with a taking to seek a declaration of the constitutionality of the disputed governmental action before potentially uncompensable damages are sustained.
Duke Power Co v. Carolina Env. Study Group, Inc., 438 U.S. 60, 71 n.15 (1979). We get that just compensation is the usual remedy, and the most common. But the sole remedy? Jury’s still out on that one, in our opinion.
Want more on the theory and practice of challenging these type of emergency orders? Please plan on joining us next week, Wednesday, July 22, 2020, at 1pm ET (10am PT) for a long-form program on “Emergency and Police Power: Property Claims in Times of Crisis,” sponsored by the ABA Section of State and Local Government Law. Our speakers are Professors Craig Konnoth (Colorado) and John Nolon (Pace), and one of the lawyers on the forefront of the nationwide legal challenges, Harmeet Dhillon (San Francisco). I’ll be moderating, along with Professor Sarah Adams-Schoen (Oregon).
Would you like a deeper dive into takings and these type of emergency orders? Check out our soon-to-be-published article, “Evaluating Emergency Takings: Flattening the Economic Curve” (forthcoming 2020).
Xponential Fitness v. Arizona, No. CV-20-01310 (D. Ariz. July 14, 2020) (unpub.)
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