We're not going to ask you to read the entire 24 pages of the Washington Supreme Court's 5-4 opinion in Gonzales v. Inslee, No. 1000992-5 (Sep. 28, 2023), in which the court seriatim rejects every challenge to the Governor's Co-19 emergency eviction moratorium for tenants, which allowed tenants who did not pay rent to remain in occupation for the up to 15 months the moratorium was in place.
Instead, we're going to focus only on the takings challenge under the Washington Constitution. The plaintiffs asserted a physical takings claim, based on their right to exclude nonpaying tenants. Rejecting the argument (as several other courts have done), the Washington court concluded that the moratorium on evictions was merely regulation of the "voluntary relationship" between an owner and tenant.
Hang on, you say, what do you mean "voluntary relationship?" If I am an owner, yes, I voluntarily handed over the keys and established a contractual relationship with the tenant, but that relationship was based on several essential terms, foremost of which was you get to stay as long as you pay rent. I most certainly did not agree to let tenants continue to occupy my property if they do not pay rent. How can this be "voluntary."
The court rejected this notion, concluding instead that you let 'em in owner, so after that it doesn't matter what happens. Sky's the limit. Getting 'em out is merely "[g]overnment regulation of that voluntary relationship[.]" Slip op. at 16. And that, "without more, is not a taking." Id. (And if you predicted that the court relied on Yee v. City of Escondido, you'd be right.)
Yee, by the way, indeed holds that merely adjusting some of the terms of the voluntary owner/tenant relationship isn't necessarily a taking. Remember, that case involved a facial challenge to a rent control ordinance, and the Court concluded the government wasn't forcing anyone into the rental business, didn't keep anyone from getting out of the rental business, and acknowledged that there was no allegation the amount of the regulated rent kept the owner from receiving a fair return.
That case said nothing along the lines that the Gonzales opinion (and a lot of others) claim it says: once you let someone in (even if their entry was conditioned on continuing to pay rent), that you can be prohibited from getting them out. Take that, suckers!
After all, doesn't it seem like a pretty far stretch to say that a case in which the government only diddled with the amount of rent charged is the same as a case in which the government tells existing tenants "you don't have to leave if you stop paying rent." The first might not be wiping out an essential stick of property (after all, the owner can still collect rent, get out of the business, etc.). The second radically undermines an essential property stick (the ability to recover and possess property, get out of the business, etc.). Seems like a pretty darn significant difference to us.
Indeed, the U.S. Supreme Court seems to take a very dim view of the way the Yee opinion has been cited. In Alabama Ass'n of Realtors v. Dep't of Health and Human Services, the Court seemingly went out of its way to point out that the inability to evict nonpaying tenants "intrudes" on the "fundamental" right to exclude. What case is notably missing from the opinion? That's right, any mention of Yee v. City of Escondido. You might think that a rent-control decision in which the right to exclude might also be referenced. But no. So what this tells us is that maybe the Supreme Court does not share the same view of Yee as the kryptonite to physical occupation takings challenges for eviction prohibitions, temporary or permanent.
And here's the most bizarre part of the opinion, in our opinion. Indeed, one of the oddest things we've ever seen in a judicial opinion. We call your attention to footnote 9 on pages 17-18, which we reproduce here in its entirety. And we're highlighting the weirdest part, just so you don't miss it:
We are not without sympathy to the fact that the petitioners have been made to bear the cost of accommodating a public need. We note that both Congress and the Washington State Legislature have appropriated significant funds to defray at least some of that cost in situations where the tenants have not paid rent and have avoided paying their debts. See Laws of 2021, ch. 334, § 129(45) (appropriating $658 million for emergency rental and utility assistance); American Rescue Plan Act of 2021, Pub. L. No. 117-2, § 3201, 135 Stat. 4, 54-58 (2021); Consolidated Appropriations Act, 2021, Pub. L No. 116-260, 134 Stat. 1182 (2020); see also Treasury Rent Assistance Program (T-RAP), Wash. St. Dep't of Com., https://www.commerce.wa.gov/serving-communities/homelessness/cares-act-and-state-rent-assistance
[https://perma.cc/6VBV-GNH3].
Read that highlighted part again, just to make sure you got it right. We had to do so just to be sure our eyes were working. (They are.)
Yes, indeed, the court is acknowledging that impressing private rental units into public service as public housing is "accommodating a public need." And that owners of rental property are being forced to bear the cost of that accommodation.
To which we say ... what about Armstrong? Isn't this the fundamental point of the Just Compensation Clause to spread the cost of public benefits to everyone, and ensure that the poor saps whom the political process has left without a chair when the music stopped are not also left holding the economic bag? This part of Armstrong has been quoted so many times in opinions, briefs, and law review articles that surely it must be imprinted on your brain by now and like me, you can recite it from practically from memory:
The Fifth Amendment's guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.
So it isn't like the Gonzales majority doesn't get what's going on, and that property owners were forced by the eviction moratorium to provide public housing for free. Which to us makes it worse: the majority believes that the Washington Constitution doesn't require distribution of the cost of public benefits to the entire public.
Hate to break it to you, but the Washington Constitution cannot recognize lesser rights than the U.S. Constitution.
So stay tuned. That footnote is the Achilles heel, as it brings down the entirety of the opinion's no-taking conclusion.
Gonzales v. Inslee, No. 100992-5 (Wash. Sep. 28, 2023) (en banc)
