No. 23-935
`IN THE
`Supreme Court of the United States
`
`_______________________
`
`GENE GONZALES AND SUSAN GONZALES, HORWATH
`FAMILY TWO, LLC, AND THE WASHINGTON
`LANDLORD ASSOCIATION,
`
`v.
`GOVERNOR JAY INSLEE AND STATE OF WASHINGTON,
`Respondents.
`
`Petitioners,
`
`_______________________
`
`_______________________
`
`_______________________
`
`On Petition for Writ of Certiorari to the Supreme
`Court of Washington
`BRIEF OF AMICI CURIAE MORE HOUSING NOW!
`AND WASHINGTON MULTI-FAMILY HOUSING
`ASSOCIATION IN SUPPORT OF PETITIONERS
`JOHN A. DILORENZO, JR.
`Counsel of Record
`CHRISTOPHER SWIFT
`DAVIS WRIGHT TREMAINE LLP
`560 SW TENTH AVE., SUITE 700
`PORTLAND, OR 97205
`(503) 241-2300
`johndilorenzo@dwt.com
`chrisswift@dwt.com
`
`Counsel for Amici Curiae
`
`LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com
`
`
`IN THE
`Supreme Court of the United States
`
`_______________________
`
`GENE GONZALES AND SUSAN GONZALES, HORWATH
`FAMILY TWO, LLC, AND THE WASHINGTON
`LANDLORD ASSOCIATION,
`
`v.
`GOVERNOR JAY INSLEE AND STATE OF WASHINGTON,
`Respondents.
`
`Petitioners,
`
`_______________________
`
`_______________________
`
`_______________________
`
`On Petition for Writ of Certiorari to the Supreme
`Court of Washington
`BRIEF OF AMICI CURIAE MORE HOUSING NOW!
`AND WASHINGTON MULTI-FAMILY HOUSING
`ASSOCIATION IN SUPPORT OF PETITIONERS
`JOHN A. DILORENZO, JR.
`Counsel of Record
`CHRISTOPHER SWIFT
`DAVIS WRIGHT TREMAINE LLP
`560 SW TENTH AVE., SUITE 700
`PORTLAND, OR 97205
`(503) 241-2300
`johndilorenzo@dwt.com
`chrisswift@dwt.com
`
`Counsel for Amici Curiae
`
`LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com
`
`
`
`i
`
`TABLE OF CONTENTS
`
`Page
`
`TABLE OF AUTHORITIES .................................... ii
`INTERESTS OF AMICI CURIAE ........................... 1
`SUMMARY OF ARGUMENT ................................. 3
`ARGUMENT ............................................................ 6
`CONCLUSION ....................................................... 18
`
`
`
`
`
`
`
`ii
`TABLE OF AUTHORITIES
`
` Page(s)
`
`Federal Cases
`
`Ala. Ass’n of Realtors v. Dep’t of Health & Human
`Servs.
`594 U.S. 758 (2021) ....................................... 9, 16
`Cedar Point Nursery v. Hassid,
`594 U.S. 139 (2021) ............................ 2, 5-7, 9, 12
`Heights Apartments, LLC v. Walz,
`30 F.4th 720 (8th Cir. 2022) ............................... 2
`Kaiser Aetna v. United States,
`444 U.S. 164 (1979) ........................................... 11
`Loretto v. Teleprompter Manhattan CATV Corp.,
`458 U.S. 419 (1982) ............................ 8, 10, 11, 16
`Pakdel v. City & Cnty. of San Francisco,
`594 U.S. 474 (2021) ............................................. 9
`Yee v. City of Escondido,
`503 U.S. 519 (1992) ...................................... 2, 5-8
`
`State Cases
`Chong Yim v. City of Seattle,
`192 Wash. 2d 682 (2019) .................................... 7
`Gonzales v. Inslee,
`2 Wash. 3d 280 (2023) ........................... 2, 5, 7, 18
`
`
`
`iii
`
`Gonzales v. Inslee,
`21 Wash. App. 2d 110 (2022) .......................2, 5, 6
`
`Constitutional Provisions
`U.S. Const., amend. V ............................... 1, 9, 11, 12
`
`State Statutes
`2020 Or. Laws Third Spec. Sess. ch. 3, § 2 ........... 13
`2021 Or. Laws, ch. 420, § 12(2) ............................. 13
`Cal. Code Regs., Title 8, § 20900(e)(1)(C) (2020) .. 10
`Wash. Rev. Code § 43.31.605 ............................14, 15
`Wash. Rev. Code § 43.31.605(1) ............................ 15
`Wash. Rev. Code § 43.31.605(1)(c)(i)(B) ................ 17
`Wash. Rev. Code § 43.31.605(1)(c)(ii) .................... 16
`Wash. Rev. Code § 43.31.605(1)(c)(iii)(A) .............. 16
`Wash. Rev. Code § 43.31.605(1)(c)(iii)(B) .............. 16
`Wash. Rev. Code § 59.12.030(3) ............................ 16
`Wash. Rev. Code § 59.18.630 ................................. 15
`
`Rules
`Sup. Ct. R. 37 ........................................................... 1
`
`
`
`iv
`
`Legislative History
`Oregon House Bill 4401 ......................................... 13
`Washington Senate Bill 5160 ...........................15, 17
`
`Other Authorities
`2 W. Blackstone, Commentaries on the Laws of
`England 2 (1766) ............................................... 10
`Merrill, Property and the Right to Exclude, 77 Neb.
`L. Rev. 730 (1998) ............................................. 11
`Oregon Landlord Compensation Fund, For
`Immediate Release (oregon.gov) (Jan. 28, 2021)
`and https://www.portland.gov/phb/rent-
`relief/oregon-landlord-compensation-fund ... 4, 14
`
`Q&A: Eviction Moratoriums for Tenants in the
`United States, January 26, 2021, Human Rights
`Watch, https://www.hrw.org/news/2021/01/26/
`qa-eviction-moratoriums-
`tenants-united-states ......................................... 3
`
`
`
`1
`
`INTERESTS OF AMICI CURIAE1
`More Housing Now! (“MHN”) is a 504(c)(4) organ-
`ization formed under the laws of the State of Oregon.
`MHN advocates—through legislative lobbying and
`otherwise—for policies that protect and expand the
`housing supply in the State of Oregon. As a part of
`that advocacy, MHN works closely with property de-
`velopers and housing providers to develop and im-
`plement market-based solutions to address the
`shortage of housing in Oregon and across the nation.
`MHN’s advocacy was instrumental to the crea-
`tion of the State of Oregon’s Landlord Compensation
`Fund Program, which provided compensation to
`property owners injured by state and local eviction
`moratoria during the COVID-19 pandemic. As a rep-
`resentative of housing providers and advocate for
`pro-housing policies, MHN has a significant interest
`in ensuring that property owners receive just com-
`pensation when forced to provide housing without
`receiving rent payments—in accordance with their
`fundamental rights under the Fifth Amendment to
`the Constitution of the United States of America.
`The Washington Multi-Family Housing Associa-
`tion (WMFHA), established in 2003, is the Washing-
`ton State affiliate of the National Apartment Associ-
`ation (NAA). It represents residential property
`management companies, managers and owners of
`
`1 Pursuant to this Court’s Rule 37, amici state that no counsel
`for any party authored this brief in whole or in part, and no
`person or entity other than amici made a monetary contribu-
`tion to the preparation or submission of the brief. Amici pro-
`vided timely notice of this brief to the parties.
`
`
`
`2
`
`multi-family properties, apartment communities,
`and industry supplier companies that promote and
`advance the multi-family housing industry in Wash-
`ington. WMFHA actively monitors and influences
`the legislative process to advocate equitably for the
`industry and the communities it services. WMFHA’s
`educational and career development programs in-
`clude national professional accreditation courses,
`continuing education, and opportunities. When its
`members’ interests are at stake, WMFHA also par-
`ticipates in litigation to protect and promote those
`interests.
`Many of WMFHA’s members are apartment own-
`ers who have suffered under a variety of eviction
`moratoria enacted throughout the country during
`COVID-19, including owners with rental properties
`in Seattle.
`If left unreviewed, the Supreme Court of Wash-
`ington’s decision in Gonzales v. Inslee, 2 Wash. 3d
`280, 295-96 (2023), will deny rental property owners
`those rights. In Gonzales, the Supreme Court of
`Washington misconstrued Yee v. City of Escondido,
`503 U.S. 519 (1992), and Cedar Point Nursery v.
`Hassid, 594 U.S. 139 (2021), as establishing that a
`government-compelled occupation of private prop-
`erty cannot constitute a taking if the occupier was
`once an invitee. The Supreme Court of Washington’s
`holding is at odds with Heights Apartments, LLC v.
`Walz, 30 F.4th 720, 733 (8th Cir. 2022), which ad-
`dressed a similar eviction moratorium. Therefore, a
`Writ of Certiorari should issue so that the Court may
`clarify a significant split concerning one of the most
`fundamental rights held by Americans: a property
`owner(s)’ right to exclude.
`
`
`
`3
`
`SUMMARY OF ARGUMENT
`During the COVID-19 global pandemic, an un-
`precedented wave of government takings occurred in
`the form of federal, state, and local moratoria on
`evictions. These mandates compelled property own-
`ers to provide housing to tenants whose contractual
`right to occupy the premises had terminated and
`who otherwise would have been evicted. Indeed, by
`January of 2021—a mere eight months into the pan-
`demic—it was estimated that unpaid rents in the
`United States were “as high as $70 billion.”2
`The federal government—in reaction to the eco-
`nomic pressures caused by the response of various
`levels of government to the pandemic—passed the
`Coronavirus Aid, Relief, and Economic Security Act
`(“CARES Act”) which provided $2.2 trillion in eco-
`nomic stimulus. Many of those funds were distrib-
`uted to the states in order to protect their citizens,
`stimulate the consumer economy, and provide assis-
`tance to those who were affected by an inability—or
`significantly decreased ability—to earn a living.
`Not all public relief was provided at public ex-
`pense, however. To the contrary, governments
`across the country adopted programs that forced pri-
`vate property owners to bear the public burden of
`providing housing without compensation. As a re-
`sult, rental property owners—who faced the same
`
`
`2 Q&A: Eviction Moratoriums for Tenants in the United States,
`January
`26,
`2021,
`Human
`Rights
`Watch,
`https://www.hrw.org/news/2021/01/26/qa-eviction-moratori-
`ums-tenants-united-states.
`
`
`
`4
`
`economic realities as everyone else during the pan-
`demic—were forced to endure the additional govern-
`ment-imposed costs in the form of eviction moratoria
`like Proclamation 20-19. In other words, not only did
`landlords likely find their own outside income de-
`pressed, they also faced an evisceration of the bene-
`fit of their investment incomes as tenants now pro-
`tected by eviction moratoriums began ceasing pay-
`ing rent in droves. It is for that reason that the
`CARES Act was a potential lifesaver in turbulent
`waters as federal relief was distributed to the state
`to stimulate the economy and assist the American
`people.
`Certain states chose to use CARES Act money to
`supplement state expenditures to protect their citi-
`zens and to compensate landlords whose physical
`property was being taken from them in the form of
`an eviction moratorium that prevented landlords
`from evicting tenants for nonpayment of rents. For
`instance, Oregon—in response to efforts of amicus
`MHN and other advocates for housing providers—
`enacted a program ultimately providing full com-
`pensation to landlords for unpaid rents from ten-
`ants who could not be evicted.3 Under Oregon’s pro-
`gram, landlords were able to recoup close to the ac-
`tual damages caused by per se government takings.
`Not all landlords around the country fared as
`well. For instance, landlords just across the border
`in Washington state were similarly unable to evict
`breaching tenants for nonpayment of rent but when
`
`3 Oregon Landlord Compensation Fund, https://www.port-
`land.gov/phb/rent-relief/oregon-landlord-compensation-fund.
`
`
`
`5
`
`relief came following the passage of the CARES Act,
`Washington state saw fit to cap rental assistance to
`landlords caused by
`tenant nonpayment
`to
`$15,000—irrespective of the amount of monthly rent
`and the number of months missed. Accordingly, a
`Seattle landlord who was renting a $3,000-per-
`month home to a tenant would recoup only a small
`fraction of the amount in arrears in state support. In
`exchange, that landlord would have to forgo all ad-
`ditional avenues of recourse for the unpaid rent, in-
`cluding the ability to seek other forms of relief.4
`Aggrieved landlords in Washington sought to
`challenge Washington’s taking of their property
`without compensation and sued the state and Gov-
`ernor Inslee, culminating in Gonzales v. Inslee, 2
`Wash. 3d 280, 295-96 (2023), a Supreme Court of
`Washington decision for which a Writ of Certiorari
`is now sought by Petitioners.
`The Supreme Court of Washington ruled in Gon-
`zales, however, that the Washington eviction mora-
`torium imposed by Proclamation 20-19 did not con-
`stitute a per se taking such that no compensation
`was required. In so ruling, the Supreme Court of
`Washington misapplied Yee v. City of Escondido, 503
`U.S. 519 (1992), under the theory that no taking took
`place because, at one point in time, a voluntary rela-
`tionship between the landlord and tenant existed.
`Based upon that flawed premise, the Supreme Court
`of Washington determined that Cedar Point Nursery
`v. Hassid, 594 U.S. 139 (2021), was inapposite as the
`
`
`4 Wash. Rev. Code § 43.31.605(c)(iii)(A) & (B).
`
`
`
`6
`
`government intrusion in that case was never prem-
`ised upon a voluntary relationship. Of course, the
`Supreme Court of Washington overlooked that Yee
`related to a rent control regulation which did not
`prevent a landlord from evicting (and therefore ex-
`cluding) a current tenant who failed to pay rent.
`Proclamation 20-19 removed Washington landlords’
`abilities to exclude a tenant who refused to pay any
`rent and therefore constituted a taking under Cedar
`Point.
`For these reasons, amici respectfully urge the
`Court to issue the Writ of Certiorari sought by Peti-
`tioners.
`
`ARGUMENT
`A. Washington’s Eviction Moratorium
`Was a Per Se Taking Requiring Just
`Compensation.
`As set forth in the Petition for Writ of Certiorari
`(the “Petition”), “Petitioners sued in Washington
`state court alleging, inter alia, that the State’s evic-
`tion ban pursuant to Proclamation 20-19, et al., was
`a physical taking in violation of the Takings Clause
`of Article I, Section 16 of the Washington Consti-
`tute.” Pet. at 10-11. The trial court, Court of Appeals
`of Washington, and the Supreme Court of Washing-
`ton all ruled against Petitioners. Id. Along the way,
`the courts acknowledged that, while Petitioners
`brought their claims pursuant to Washington’s state
`constitution, “Washington courts generally apply
`the federal takings analysis” in analyzing takings
`claims under the state constitution. Gonzales v.
`Inslee, 21 Wash. App. 2d 110, 134 (2022) (“Gonzales
`
`
`
`7
`
`I”) (citing Chong Yim v. City of Seattle, 192 Wash. 2d
`682, 688-89 (2019)).
`Indeed, the Supreme Court of Washington de-
`cided the takings claim at issue in this case by look-
`ing to two of this Court’s decisions: Yee v. City of Es-
`condido, 503 U.S. 519 (1992), and Cedar Point
`Nursery v. Hassid, 594 U.S. 139 (2021). Gonzales v.
`Inslee, 2 Wash. 3d 280, 295-96 (2023) (“Gonzales II”).
`Ultimately relying on Yee rather than Cedar Point,
`the Washington Supreme Court held that Proclama-
`tion 20-19 was not a taking because a voluntary
`landlord and tenant relationship preexisted the
`Proclamation, and “[g]overnment regulation of that
`voluntary relationship, without more, is not a tak-
`ing.” Id. at 295 (quoting Chong Yim, 194 Wash. 2d
`at 673 and citing also Yee, 503 U.S. at 532). Under
`the Supreme Court of Washington’s interpretation,
`a taking can only occur if the party intruding with
`government sanction initially “come[s] onto the
`property without the property owner’s permis-
`sion.” Gonzales II, 2 Wash. 3d at 295 (citing Cedar
`Point, 594 U.S. at 162) (emphasis added). In its view,
`an intruding party’s status as either an invitee or a
`trespasser is immutable and fixed at the moment the
`party first enters the property. But an invitee’s right
`to occupy a property is not unconditional; it is con-
`tingent on compliance with the terms of the parties’
`agreement. Once a former invitee ceases to have a
`contractual right to occupy the property, the govern-
`ment cannot compel the property owner to continue
`to allow the occupation without receiving compensa-
`tion.
`Nothing in Yee holds otherwise. The petitioners
`there were mobile home park owners in Escondido,
`
`
`
`8
`
`California, who rented pads of land to mobile
`homeowners. Id. at 523. The petitioners challenged
`the City’s rent control ordinance that prohibited rent
`increases absent the City Council’s approval. Id. at
`524-25. This Court held that the rent control
`ordinance did not authorize an unwanted physical
`occupation of petitioners’ property and therefore did
`not amount to a per se taking. Id. at 532. This was
`because the ordinance neither forced petitioners to
`rent their property in the first instance, nor prohib-
`ited them from excluding tenants from their land:
`Petitioners voluntarily rented their
`land to mobile home owners. At least on
`the face of the regulatory scheme, nei-
`ther the city nor the State compels
`petitioners, once they have rented
`their property to tenants, to con-
`tinue doing so.
`Id. at 527-28 (emphasis added).
`While the Supreme Court of Washington relied
`on the Yee decision’s description of states’ “broad
`power to regulate . . . the landlord-tenant relation-
`ship,” it failed to recognize that power is premised
`on the landlord’s voluntary invitation of the tenant
`in the first instance and the landlord’s ongoing right
`to exclude the tenant pursuant to the terms of the
`parties’ contract—especially for nonpayment of rent.
`See Yee, 503 U.S. at 531 (recognizing “a landlord’s
`ability to rent his property may not be conditioned
`on his forfeiting the right to compensation for a
`physical occupation”) (quoting Loretto v. Tele-
`prompter Manhattan CATV Corp., 458 U.S. 419, 439
`
`
`
`9
`
`n.17 (1982)).5 In fact, the Court expressly acknowl-
`edged that compelling landlords to rent their prop-
`erty in the first place would be a taking: “Had the
`city required such an occupation, of course, petition-
`ers would have a right to compensation, and the city
`might then lack the power to condition petitioners’
`ability to run mobile home parks on their waiver of
`this right.” Id. at 532. The same is true when the
`government compels the continued occupation—
`without compensation—of private property after a
`former tenant’s contractual right to occupy it has
`ended. See id. at 528 (“A different case would be pre-
`sented were the statute, on its face or as applied, to
`compel a landowner over objection to rent his prop-
`erty or to refrain in perpetuity from terminating a
`tenancy.”) (emphasis added).
`The fact that this coerced occupation eventually
`ended as the pandemic abated does nothing to
`change this result. In Cedar Point, for example, the
`Court held that a California access regulation that
`gave outside labor organizers a right to “take access”
`
`5 The Washington Supreme Court’s implicit assumption that
`rental property owners have diminished rights under the Fifth
`Amendment compared to all other property owners cannot be
`squared with this Court’s pronouncements. See Ala. Ass’n of
`Realtors v. Dep’t of Health & Human Servs. 594 U.S. 758, 765
`(2021) (“[P]reventing them from evicting tenants who breach
`their leases intrudes on one of the most fundamental elements
`of property ownership—the right to exclude.”); see also Pakdel
`v. City & Cnty. of San Francisco, 594 U.S. 474, 477 n.1 (2021)
`(reversing dismissal of landlords’ taking claims on exhaustion
`grounds and urging lower court to reexamine ruling on merits
`and “give further consideration to these claims in light of our
`recent decision in Cedar Point Nursery v. Hassid.” (internal ci-
`tation omitted).
`
`
`
`10
`
`to agricultural employers’ property for limited peri-
`ods was a per se physical taking because it
`appropriated property owners’ right to exclude. 594
`U.S. at 152 (quoting Cal. Code Regs., tit. 8,
`§ 20900(e)(1)(C) (2020)).
`The access regulation appropriates a
`right to invade the growers’ property
`and therefore constitutes a per se phys-
`ical taking. The regulation grants un-
`ion organizers a right to physically en-
`ter and occupy the growers’ land for
`three hours per day, 120 days per year.
`Rather than restraining the growers’
`use of their own property, the regula-
`tion appropriates for the enjoyment of
`third parties the owners’ right to ex-
`clude.
`The right to exclude is “one of the most
`treasured” rights of property owner-
`ship. Loretto v. Teleprompter Manhat-
`tan CATV Corp., 458 U.S. 419, 435 . . .
`(1982). According to Blackstone, the
`very idea of property entails “that sole
`and despotic dominion which one man
`claims and exercises over the external
`things of the world, in total exclusion of
`the right of any other individual in the
`universe.” 2 W. Blackstone, Commen-
`taries on the Laws of England 2 (1766).
`In less exuberant terms, we have
`stated that the right to exclude is “uni-
`versally held to be a fundamental ele-
`ment of the property right,” and is “one
`
`
`
`11
`
`of the most essential sticks in the bun-
`dle of rights that are commonly charac-
`terized as property.” Kaiser Aetna v.
`United States, 444 U.S. 164, 176 . . .
`(1979); . . . see also Merrill, Property
`and the Right to Exclude, 77 Neb. L.
`Rev. 730 (1998) (calling the right to ex-
`clude the “sine qua non” of property).
`Given the central importance to prop-
`erty ownership of the right to exclude,
`it comes as little surprise that the
`Court has long treated government-au-
`thorized physical invasions as takings
`requiring just compensation.
`Id. at 149‒50.
`The Court rejected the notion that the failure
`of the regulation to invade the property right “round
`the clock” made the taking any less a taking under
`the Fifth Amendment. Id. at 153-54. “[A] physical
`appropriation is a taking whether it is permanent or
`temporary,” and “[t]he duration of an appropria-
`tion—just
`like the size of an appropriation,
`see Loretto, 458 U.S. at 436-37—bears only on the
`amount of compensation.” Id. at 153. Similarly, the
`Court held that “physical invasions constitute tak-
`ings even if they are intermittent as opposed to con-
`tinuous.” Id. at 153.
`Just as the access regulation in Cedar Point
`constituted a per se taking by “grant[ing] labor or-
`ganizations a right to invade the growers’ property,”
`id. at 162, so too are eviction moratoria that grant a
`right for nonpaying tenants to continue to occupy a
`landlord’s property. If the government entered a
`
`
`
`12
`
`lease with a property owner and then announced
`that it would continue to occupy the property with-
`out paying rent for an indefinite period of time, there
`would be little question that the government had
`committed a taking. The Washington Supreme
`Court fails to explain why the result should be dif-
`ferent when government authorizes a private indi-
`vidual to do the same.
`Accordingly, Respondents’ Proclamation 20-19
`constituted a per se physical taking, and the State of
`Washington was required to provide just compensa-
`tion to affected property owners. As shown below, it
`did not do so.
`B. Oregon provided just compensation
`to rental property owners, and Wash-
`ington did not.
`Like Washington, the State of Oregon imposed
`eviction moratoria that compelled rental property
`owners to provide housing without receiving rent.
`Unlike Washington, the State of Oregon imple-
`mented a landlord compensation program intended
`to provide compensation to landlords injured by the
`government’s actions.
`As Oregon’s approach demonstrates, it was feasi-
`ble for states to comply with their Fifth Amendment
`obligation to compensate property owners for tak-
`ings. Washington nevertheless failed to do so.
`a. Oregon provided compensation
`to landlords after taking their
`private property for public use.
`Throughout the pandemic, amicus MHN helped
`lead the effort to secure relief for housing providers
`
`
`
`13
`
`suffering an historic shortfall in rent caused by evic-
`tion moratoria in Oregon. The legislature provided
`this relief in two stages.
`HB 4401: The legislature began by enacting
`House Bill 4401, which took effect December 23,
`2020. 2020 Or. Laws Third Spec. Sess. Ch. 3, § 2.
`This initial legislation “compensate[d] residential
`landlords for 80 percent of the past-due rent of qual-
`ified tenants that the landlord has not collected after
`April 1, 2020” due to hardships related to the
`COVID-19 pandemic. Id., § 2(1).
`But in exchange for this partial compensation,
`the statute required Oregon landlords to forgive “the
`remaining 20 percent of the unpaid rent due from
`qualified tenants that ha[d] accrued between April
`1, 2020, and the date of the application, upon receiv-
`ing a distribution[.]” Id. § 2(1)(d). Thus, had the leg-
`islature stopped with HB 4401, Oregon residential
`landlords would have been left without a complete
`remedy for the losses inflicted by the eviction mora-
`toria.
`SB 278: In June 2021, however, the legislature
`amended HB 4401 to compensate landlords for 100
`percent of unpaid rents. 2021 SB 278, § 12(2), Ch.
`420 Or Laws 2021. This change applied retroac-
`tively, and the legislature directed the administer-
`ing agency to “make distributions to adjust the com-
`pensation under” HB 4401, “without requiring that
`the landlord submit an additional application.” Id.
`§ 13(2).
`Moreover, the Oregon Legislative Assembly ade-
`quately funded the program, beginning with an allo-
`cation of “$150 million in one-time funds for [the
`
`
`
`14
`
`Landlord Compensation Fund]” established by Ore-
`gon in order “to assist landlords in keeping finan-
`cially stressed tenants in their homes.” Oregon
`Landlord Compensation Fund, For Immediate Re-
`lease
`(oregon.gov)
`(Jan.
`28,
`2021)
`and
`https://www.portland.gov/phb/rent-relief/oregon-
`landlord-compensation-fund.
`While the state’s administration of the program
`was far from perfect, Oregon’s approach provided an
`adequate procedure for obtaining just compensation
`for the losses caused by a government taking—i.e.,
`requiring landlords to continue to house tenants not-
`withstanding their failure to honor their commit-
`ment to pay rent.
`b. Washington failed to provide
`just compensation to landlords
`after taking their private prop-
`erty for public use.
`Across the Columbia River from Oregon, Re-
`spondent Inslee signed SB 5160 into law on April 22,
`2021, and it became effective that same day.
`[https://lawfilesext.leg.wa.gov/biennium/2021-
`22/Pdf/Bills/Session%20Laws/Senate/5160-
`S2.SL.pdf#page=1.] SB 5160 amended the “landlord
`mitigation program” which is codified at Wash. Rev.
`Code § 43.31.605 to include certain relief pertaining
`to lost rent suffered by landlords in Washington
`caused by the eviction moratorium imposed by Proc-
`lamation 20-19.
`Specifically, SB 5160 stated that the “legislature
`finds that the COVID-19 pandemic is causing a sus-
`tained global economic slowdown, and an economic
`
`
`
`15
`
`downturn throughout Washington state . . . dispro-
`portionately affecting low and moderate-income
`workers resulting in lost wages and the inability to
`pay for basic household expenses, including rent.”
`SB 5160, § 1 (emphasis added). “Because the
`COVID-19 pandemic has led to an inability for ten-
`ants to consistently pay rent, the likelihood of evic-
`tions has increased, as well as life, health, and safety
`risks to a significant percentage of the state’s ten-
`ants.” Id. “As a result, [Respondent Inslee] has is-
`sued a temporary moratorium on evictions as of
`March 2020, with multiple extensions and other re-
`lated actions, to reduce housing instability and ena-
`ble tenants to stay in their homes.” Id. The legisla-
`ture then stated its explicit intent was to provide
`various “tenant protections,” as well as to “ensure
`tenants and landlords have adequate opportunities
`to access state and local rental assistance programs
`to reimburse landlords for unpaid rent and preserve
`tenancies.” Id.
`Relevant to this case, Senate Bill 5160 allowed
`landlords to seek limited “reimbursement from the
`landlord mitigation program account[.]” Wash. Rev.
`Code § 43.31.605(1). Specifically, landlords could
`make “[c]laims related to unpaid rent for . . . (A) Up
`to $15,000 in unpaid rent that accrued between
`March 1, 2020, and six months following the expira-
`tion of the eviction moratorium and the tenant being
`low-income, limited resourced or experiencing hard-
`ship, voluntarily vacated or abandoned the tenancy;
`or . . . (B) Up to $15,000 in remaining unpaid rent if
`a tenant defaults on a repayment plan entered into
`under Wash. Rev. Code § 59.18.630 are eligible for
`
`
`
`16
`
`reimbursement from the landlord mitigation pro-
`gram account subject to the program requirements
`under this section, provided the tenancy has not
`been terminated at the time of reimbursement.” Id.,
`§ 43.31.605(1)(c)(i)(A) & (B).
`Further, any landlord that sought reimburse-
`ment—even partial reimbursement—under SB 5160
`was “prohibited from: . . . [t]aking legal action
`against the tenant for damages or any remaining un-
`paid rent accrued between March 1, 2020, and six
`months following the expiration of the eviction mor-
`atorium attributable to the same tenancy[.]” Wash.
`Rev. Code § 43.31.605(1)(c)(iii)(A).6
`In other words, after precluding landlords from
`exercising their constitutionally protected right to
`exclude, Ala. Ass’n of Realtors,, 594 U.S. at 766
`(quoting Loretto v. Teleprompter Manhattan CATV
`Corp., 458 U.S. 419, 425 (1982)), Respondents pro-
`vided a maximum of $15,000 in compensation—irre-
`spective of the actual damages caused by the evic-
`tion moratorium. Moreover, Respondent’s condi-
`tioned that “assistance” upon the landlord’s toler-
`ance of the breaching tenancy’s continuation up
`through the date of collection of the assistance
`
`
`6 The law also prohibited “[p]ursuing collection, or authorizing
`another entity to pursue collection on the landlord’s behalf, of
`a judgment against the tenant for damages or any remaining
`unpaid rent” accruing during the same time period. Wash. Rev.
`Code § 43.31.605(1)(c)(iii)(B). SB 5160 also rendered landlords
`ineligible for reimbursement “where the tenant vacated the
`tenancy because of an unlawful detainer action under Wash.
`Rev. Code
`§
`59.12.030(3).” Wash. Rev. Code
`§
`43.31.605(1)(c)(ii).
`
`
`
`17
`
`(Wash. Rev. Code § 43.31.605(1)(c)(i)(B)), and ex-
`pressly waiving their right to take legal action to re-
`coup the difference in damages caused by nonpay-
`ment of rent and the $15,000 assistance payment, or
`otherwise attempting to collect any rent shortfall.
`Id., § 43.31.605(1)(c)(iii)(A) & (B).
`Upon signing SB 5160, Respondent Inslee also
`vetoed Sections 12 and 13.
`Section 12 would have required the Washington
`State Commerce Department to “authorize land-
`lords an opportunity to apply . . . (a) [For] [r]ental
`assistance provided through the consolidated home-
`less grant program; (b) [for] rental assistance pro-
`vided through the emergency solutions grant pro-
`gram; and (c) [to] [a]ny rental assistance program
`funded through receipt of any federal COVID-19 re-
`lief funds.” Senate Bill 5160, §§ 12(1)(a)-(c). Section
`12 also required the Commerce Department to pro-
`vide rental assistance to landlords on behalf of spe-
`cific indigent tenants who were unable to avail
`themselves of certain welfare relief. Id. §§ 12(2)(a)-
`(b).
`Section 13—had Respondent Inslee not vetoed
`it—would have appropriated $7,500,000 “for the
`purposes of a landlord grant assistance program to
`provide grants to eligible landlords for rent that was
`not paid during the eviction moratorium pursuant to
`the governor’s proclamation 20-19.6.”
`Thus, Washington’s landlord compensation pro-
`gram required aggrieved landlords to waive their
`due process rights and access to other state and fed-
`eral programs in exchange for a claim for no more
`
`
`
`18
`
`than $15,000—even before Respondent Inslee re-
`duced total funding available for the program.
`In short, whereas Oregon undertook extensive ef-
`forts to satisfy its constitutional duty to provide just
`compensation to landlords who suffered takings,
`Washington created a fig leaf of a program that pro-
`vided little assistance to the landlords it compelled
`to carry the public burden of housing Washingtoni-
`ans during the COVID-19 pandemic. Washington’s
`refusal to take the necessary steps to compensate
`property owners flowed from its mistaken belief that
`no compensation was legally required—a belief that
`the Washington Supreme Court has now endorsed.
`That said, the Washington Supreme Court knew the
`practical impacts of its decision: “We are not without
`sympathy to the fact that the petitioners have been
`made to bear the cost of accommodating a public
`need.” Gonzales II, 2 Wash. 3d at 297 n.9. Isn’t that
`what a government taking is all about?
`The Court should grant the Petition for Writ of
`Certiorari to clarify that Washington’s eviction mor-
`atoria constituted takings for which it has a duty to
`provide just compensation.
`CONCLUSION
`For the reasons set forth herein, amici respect-
`fully request that the Court grant the Petitioner’s
`Petition for Writ of Certiorari.
`
`
`
`
`
`
`19
`
`Respectfully submitted,
`JOHN A. DILORENZO, JR.
`CHRISTOPHER SWIFT
`DAVIS WRIGHT TREMAINE LLP
`560 SW TENTH AVE., SUITE 700
`PORTLAND, OR 97201
`(503) 241-2300
`JOHNDILORENZO@DWT.COM
`CHRISSWIFT@DWT.COM
`
`
`April 17, 2024
`
`
`
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