Petition for Writ of Certiorari — Apartment Association of Los Angeles County, Inc., dba Apartment Association of Greater Los Angeles, Petitioner v. City of Los Angeles, California, et al.

No. ______

In the

Supreme Court of the United States

__________________

APARTMENT ASSOCIATION OF LOS ANGELES COUNTY,

INC., DBA APARTMENT ASSOCIATION OF

GREATER LOS ANGELES,

Petitioner,

v.

CITY OF LOS ANGELES,

&

ALLIANCE OF CALIFORNIANS FOR COMMUNITY

EMPOWERMENT ACTIONS FOR A JUST ECONOMY,

Respondents.

__________________

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

__________________

PETITION FOR WRIT OF CERTIORARI

__________________

DOUGLAS J. DENNINGTON

Counsel of Record

JAYSON A. PARSONS

RUTAN & TUCKER, LLP

18575 Jamboree Road, 9th Floor

Irvine, CA 92612

Telephone: (714) 641-5100

Facsimile: (714) 546-9035

ddennington@rutan.com

Counsel for Petitioner

November 23, 2021

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTIONS PRESENTED

In March 2020, the City of Los Angeles adopted its

COVID-19 eviction moratorium, forcing landlords to

furnish housing to defaulting tenants impacted by the

pandemic, and authorizing tenants to withhold

payment of their monthly rents for up to 12 months

following the expiration of the “local emergency.”

While the moratorium does not, on its face, eliminate

tenants’ contractual obligation to pay back rent in the

future, that is the inevitable outcome. Both the district

court and Ninth Circuit applied a version of rational

basis to uphold the eviction moratorium in the face of

Petitioner’s Contracts Clause claim, deferring to the

City’s determination of reasonableness and giving no

effect to this Court’s precedent that the “severity of the

impairment measures the height of the hurdle the state

legislation must clear,” in that “[m]inimal alteration of

contractual obligations may end the inquiry at the first

stage,” while “[s]evere impairment . . . will push the

inquiry to a careful examination of the nature and

purpose of the state legislation.” Allied Structural Steel

Co. v. Spannaus, 438 U.S. 234, 245 (1978); see also

Energy Reserves Grp., Inc. v. Kansas Power & Light

Co., 459 U.S. 400, 411 (1983) (“The severity of the

impairment is said to increase the level of scrutiny to

which the legislation will be subjected.”).

The questions presented include:

1. Whether a municipal law challenged under the

Contracts Clause as impermissibly impairing private

contracts is subject to variable scrutiny based on the

severity of the contractual impairment.

ii

2. Whether the Ninth Circuit erred by deferring to

the City’s determination of “reasonableness”

irrespective of the severity of the eviction moratorium’s

impact on existing leasehold agreements.

iii

CORPORATE DISCLOSURE STATEMENT

Petitioner Apartment Association of Los Angeles

County, Inc. dba Apartment Association of Greater Los

Angeles (“AAGLA”) is a mutual benefit C corporation

with no parent corporation and no outstanding stock

shares or other securities in the hands of the public.

AAGLA does not have any parent, subsidiary, or

affiliate that has issued stock shares or other securities

to the public. No publicly held corporation owns any

stock in AAGLA.

STATEMENT OF RELATED PROCEEDINGS

Apartment Association of Los Angeles County, Inc., et

al. v. City of Los Angeles, et al., No.

2:20-cv-05193-DDP-JEM, United States District Court,

Central District of California. Judgment entered

November 13, 2020.

Apartment Association of Los Angeles County, Inc., et

al. v. City of Los Angeles, et al., No. 20-56251, United

States Court of Appeals for the Ninth Circuit.

Judgment entered August 25, 2021.

iv

TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i

CORPORATE DISCLOSURE STATEMENT . . . . . iii

STATEMENT OF RELATED PROCEEDINGS . . . iii

PETITION FOR WRIT OF CERTIORARI . . . . . . . . 1

OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

RELEVANT CONSTITUTIONAL PROVISION . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . 2

A. Factual Background. . . . . . . . . . . . . . . . . . 2

1. History

of

Summary

Unlawful

Detainer

Proceedings in California . . . . . . . . . . . 2

2. The City Radically Alters

the

Rights

and

Responsibilities of Tenants

and Property Owners by

Indefinitely Suspending

Summary Unlawful

Detainer Proceedings . . . . . . . . . . . . . . 3

B. Proceedings Below . . . . . . . . . . . . . . . . . . . 6

1. Legal

Framework for

Contracts

Clause

Challenges. . . . . . . . . . . . . . . . . . . . . . . 7

v

2. T h e

District

Court

Proceedings . . . . . . . . . . . . . . . . . . . . . . 8

3. The Ninth Circuit’s Decision

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

4. Subsequent Decision of the

Second Circuit . . . . . . . . . . . . . . . . . . . 13

REASONS FOR GRANTING THE PETITION . . . 16

A. Certiorari Should Be Granted to

Resolve a Conflict Between the

Courts of Appeals . . . . . . . . . . . . . . . . . . . 16

B. Certiorari Should Be Granted

Because This Case Presents a

Clean Vehicle to Address an Issue

of Nationwide Importance . . . . . . . . . . . . 24

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

APPENDIX

Appendix A Opinion in the United States Court of

Appeals for the Ninth Circuit

(August 25, 2021) . . . . . . . . . . . . . App. 1

Appendix B Order Denying Plaintiff’s Motion for

Preliminary Injunction in the United

States District Court Central District

of California

(November 13, 2020) . . . . . . . . . . App. 29

Appendix C Los Angeles Municipal Code Article

14.6 Temporary Protection of Tenants

During COVID-19 Pandemic . . . App. 60

vi

TABLE OF AUTHORITIES

CASES

21st Century Oncology, Inc. v. Moody,

402 F. Supp. 3d 1351 (N.D. Fla. 2019). . . . . . . . 21

Alabama Ass’n of Realtors v. Dep’t of Health

and Human Servs., 141 S. Ct. 2485 (2021) . . . . 24

Allied Structural Steel Co. v. Spannaus,

438 U.S. 234 (1978). . . . . . . . . . . . . . . . . . . passim

American Express Travel Related Servs.

v. Sidamon-Eristoff,

669 F.3d 359 (3d Cir. 2012) . . . . . . . . . . . . . . . . 20

Auracle Homes, LLC v. Lamont,

478 F. Supp. 3d 199 (D. Conn 2020) . . . . . . . . . 24

Baptiste v. Kennealy,

490 F. Supp. 3d 353 (D. Mass. 2020) . . . . . . . . . 24

Block v. Hirsh,

256 U.S. 135 (1921). . . . . . . . . . . . . . . . . . . . . 6, 26

Bols v. Newsom,

515 F. Supp. 3d 1120 (S.D. Cal. 2021) . . . . . . . . 25

Campanelli v. Allstate Life Ins. Co.,

322 F.3d 1086 (9th Cir. 2003). . . . . . . . . . . . . . . 22

Childs v. Eltinge,

29 Cal. App. 3d 843 (1979) . . . . . . . . . . . . . . . . . . 2

Elliott v. Bd. of Sch. Trs. of Madison Consol. Schs.,

876 F.3d 926 (7th Cir. 2017). . . . . . . . . . . . . . . . 20

vii

Elmsford Apartment Assocs., LLC v. Cuomo,

469 F. Supp. 3d 148 (S.D.N.Y. 2020) . . . . . . . . . 25

Energy Reserves Grp., Inc. v. Kansas Power

& Light Co., 459 U.S. 400 (1983) . . . . . . . . passim

HAPCO v. City of Philadelphia,

482 F. Supp. 3d 337 (E.D. Pa. 2020) . . . . . . . . . 25

Heights Apartments LLC v. Walz,

510 F. Supp. 3d 789 (D. Minn. 2020) . . . . . . . . . 24

Home Bldg. & Loan Ass’n v. Blaisdell,

290 U.S. 398 (1934). . . . . . . . . . . . . . . . . 2, 6, 7, 14

Honeywell, Inc. v. Minnesota Life and Health

Ins. Guaranty Ass’n,

110 F.3d 547 (8th Cir. 1997). . . . . . . . . . . . . . . . 21

Keystone Bituminous Coal Ass’n v. DeBenedictis,

480 U.S. 470 (1987). . . . . . . . . . . . . . . . . 16, 17, 19

Lefrancois v. Rhode Island,

669 F. Supp. 1204 (D. R.I. 1987) . . . . . . . . . . . . 23

Lindsey v. Normet,

405 U.S. 56 (1972). . . . . . . . . . . . . . . . . . . . . . . . . 2

Lipscomb v. Columbus Mun. Separate Sch. Dist.,

269 F.3d 494 (5th Cir. 2001). . . . . . . . . . . . . . . . 20

Melendez v. City of New York,

No. 20-4238-cv, 2021 WL 4997666

(Oct. 28, 2021) . . . . . . . . . . . . . . . 13, 14, 15, 16, 17

Nat’l Collegiate Athletic Ass’n v. Miller,

795 F. Supp. 1476 (D. Nev. 1992) . . . . . . . . . . . 23

viii

Pension Benefit Guaranty Corp. v. R.A. Gray & Co.,

467 U.S. 717 (1984). . . . . . . . . . . . . . . . . . . . . . . 21

Ross v. City of Berkeley,

655 F. Supp. 820 (N.D. Cal. 1987) . . . . . . . . . . . 21

Sveen v. Melin,

138 S. Ct. 1815 (2018). . . . . . . . . . . . 12, 13, 17, 18

United States Trust Co. of New York

v. New Jersey, 431 U.S. 1 (1977) . . . . 8, 11, 14, 15

Vanguard Med. Mgmt. Billing, Inc. v. Baker,

Number EDCV 17-965-GW(DTBX),

2018 WL 6137198 (C.D. Cal. Apr. 26, 2018) . . . 21

Veix v. Sixth Ward Bldg. & Loan Ass’n,

310 U.S. 32 (1940). . . . . . . . . . . . . . . . . . . . . . . . . 8

W. Indian Co. v. Gov’t of Virgin Islands,

643 F. Supp. 869 (D.V.I. 1986) . . . . . . . . . . . . . . 21

W.B. Worthen Co. v. Kavanaugh,

295 U.S. 56 (1935). . . . . . . . . . . . . . . . . . . . . . 6, 27

W.B. Worthen Co. v. Thomas,

292 U.S. 426 (1934). . . . . . . . . . . . . . . . . . . . . . . 10

Willowbrook Apartment Assocs., LLC v.

Mayor & City Council of Baltimore,

Number 20-CV-01818-SAG, 2021

WL 4441192 (D. Md. Sept. 27, 2021) . . . . . . . . . 25

Wisconsin Cent. Ltd. v. Pub. Serv.

Comm’n of Wisconsin,

95 F.3d 1359 (7th Cir. 1996). . . . . . . . . . . . . . . . 20

ix

CONSTITUTIONAL PROVISIONS

U.S. Const, art. I, § 10, cl. 1. . . . . . . . . . . . . . . . . . . . 1

STATUTES

28 U.S.C. § 1254(1). . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Cal. Civ. Code § 789.3 . . . . . . . . . . . . . . . . . . . . . . . . 2

Cal. Code Civ. Proc. § 1159 . . . . . . . . . . . . . . . . . . . . 2

1

PETITION FOR A WRIT OF CERTIORARI

Apartment Association of Los Angeles County, Inc.

d.b.a. Apartment Association of Greater Los Angeles

(“AAGLA”) respectfully petitions for a writ of certiorari

to review the judgment of the United States Court of

Appeals for the Ninth Circuit.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Ninth Circuit (Pet. App. 1–28) is reported at 10

F.4th 905. The district court’s order denying

Petitioner’s preliminary injunction (Pet. App. 29–59) is

reported at 500 F. Supp. 3d 1088.

JURISDICTION

The court of appeals entered its judgment on

August 25, 2021. Pet App. 1. This Court has

jurisdiction under 28 U.S.C. 1254(1).

RELEVANT CONSTITUTIONAL PROVISION

The Contracts Clause, Article I, Section 10, Clause

1 of the United States Constitution provides in relevant

part: “No State shall . . . pass any . . . Law impairing

the Obligation of Contracts . . . .”

2

STATEMENT OF THE CASE

A. Factual Background

1. History of Summary Unlawful Detainer

Proceedings in California

In 1872, the California Legislature enacted its

unlawful detainer statutes to provide for an expedited

summary process for property owners seeking to regain

possession of real property from defaulting tenants. See

Childs v. Eltinge, 29 Cal. App. 3d 843, 853 (1979);

Lindsey v. Normet, 405 U.S. 56, 71 (1972). The idea was

simple: Property owners would give up their common

law right to evict defaulting tenants through “self-help”

measures, and in exchange would be guaranteed an

expeditious legal process to remove the tenant in what

is known as a summary unlawful detainer proceeding.

See Eltinge, 29 Cal. App. 3d at 853; see also Cal. Civ.

Code § 789.3 (prohibiting landlords from disabling

utilities, locking out tenants, and removing tenants’

personal belongings, among other things); Cal. Code

Civ. Proc. § 1159 (prohibiting any type of “forcible

entry” to regain possession).

While the statutory scheme for unlawful detainers

restricts how property owners regain possession of

their properties, the proceedings provide a reliable and

expedited process to recover possession. These legal

assurances necessarily undergird the rights and

obligations of the parties in each and every lease

agreement in California. See Home Bldg. & Loan Ass’n

v. Blaisdell, 290 U.S. 398, 429–30 (1934) (“the laws

which subsist at the time and place of the making of a

contract . . . enter into and form a part of it, as if they

3

were expressly referred to or incorporated in its

terms”). So, when contracting with tenants, property

owners depend on their right to initiate summary

proceedings when drafting the terms under which to

lease the properties. Such terms invariably include the

amount of the rent, the amount of the security deposit,

the length of the tenancy, whether or not pets or other

occupants are allowed, and the grounds on which the

parties may terminate the lease.

2. The City Radically Alters the Rights and

Responsibilities of Tenants and Property

Owners by Indefinitely Suspending

Summary Unlawful Detainer Proceedings

On March 27, 2020, the Los Angeles City Council

enacted Ordinance No. 186585 (the “Eviction

Moratorium”), imposing a moratorium on most

evictions in response to the COVID-19 pandemic. See

Pet. App. 60–69; L.A., Cal. Mun. Code (“LAMC”)

§§ 49.99 et seq. The Eviction Moratorium was signed by

Mayor Eric Garcetti on March 31, 2020, but

retroactively applied to “nonpayment eviction notices,

no-fault eviction notices, and unlawful detainer actions

based on such notices, served or filed on or after the

date on which a local emergency was proclaimed.” Pet.

App. 67; LAMC § 49.99.5. The Local Emergency Period

is defined in the Eviction Moratorium as “the period of

time from March 4, 2020, to the end of the local

emergency as declared by the Mayor.” Pet. App. 63;

LAMC § 49.99.1(C). The Eviction Moratorium remains

in effect for the duration of the indefinite Local

Emergency Period, but evictions also remain prohibited

for an additional twelve months thereafter for any rent

4

debts accruing during the “Local Emergency Period.”

Pet. App. 64; LAMC § 49.99.2(A). The Eviction

Moratorium does not eliminate the obligation to pay

lawfully charged rent at the end of the one-year grace

period, nor does it provide any assurances that

landlords will recover the back rent owed by tenants in

the future. Pet. App. 64; LAMC § 49.99.2(A).

The City’s Eviction Moratorium prohibits property

owners from terminating tenancies based on: (1) nonpayment of rent due to COVID-19 related inability to

pay (without requiring documentation of such

inability); (2) any “no fault” reason for termination;

(3) certain lease violations related to unauthorized

occupants, unauthorized pets, and nuisance; and

(4) the Ellis Act (which would otherwise allow

landlords to remove the property from the rental

market). Pet. App. 64–65, 66–67; LAMC

§§ 49.99.2(A)–(C), 49.99.4.

The Eviction Moratorium also provides for an

extended grace period — giving tenants up to 12

months after the end of the Local Emergency to repay

the delayed rent — and forbids landlords from charging

any interest or late fees. Pet. App. 64, 65; LAMC

§§ 49.99.2(A), (D). Further, while it provides that

tenants “may” agree to a repayment plan, they are not

required to do so. Pet. App. 64; LAMC § 49.99.2(A).

Thus, a tenant who fails to pay rent during the

Local Emergency Period can refuse to pay any of that

back rent for another full year after the emergency is

lifted, before the property owner has any recourse. And

while the City has eliminated most all contractual

obligations of tenants, property owners are not given

5

any relief from express or implied lease conditions

requiring them to pay for tenants’ utilities and

maintain secure and habitable living units. Nor are

owners excused from property tax liabilities, insurance

costs, debt service, or any of the other substantial costs

incurred by landlords to maintain habitable dwellings.

Importantly, the Eviction Moratorium does not

require tenants to provide any evidence of pandemicrelated inability to pay rent, or even to give their

landlords notice before they stop paying. Pet. App. 63;

LAMC § 49.99.1(B). The Eviction Moratorium

nonetheless prohibits owners from “endeavor[ing] to

evict” any tenant with such an inability, in addition to

providing that COVID-19-related inability to pay

serves as an affirmative defense to eviction for nonpayment. Pet. App. 64, 67; LAMC §§ 49.99.2(A),

49.99.6. As a result, landlords have no opportunity or

forum in which to contest a tenant’s claim for

protection.

Landlords who violate the Eviction Moratorium —

e.g., by attempting to exercise their rights under the

unlawful detainer statutes — are subject to penalties,

including administrative citations. Pet. App. 68; LAMC

§ 49.99.8. And what’s more, the Eviction Moratorium

also creates a private right of action exclusively in

favor of tenants, allowing tenants to sue their landlords

for violating the Eviction Moratorium, after providing

notice and a 15-day period to cure the violation. Pet.

App. 67–68; LAMC § 49.99.7. A tenant may bring an

action for civil penalties of up to $10,000 per violation

(plus up to an additional $5,000 per violation if the

6

tenant is a senior citizen or disabled). Pet. App. 67–68;

LAMC § 49.99.7.

B. Proceedings Below

AAGLA filed this case seeking primarily to enjoin

the City’s continued enforcement of the Eviction

Moratorium. When the District Court denied AAGLA’s

Motion for Preliminary Injunction in November 2020,

see Pet. App. 30–59, AAGLA appealed asserting, among

other things, that the District Court erred by deferring

to the City’s determination of reasonableness and by

not giving effect to the variable scrutiny applicable to

Contracts Clause claims, as well as by not recognizing

the importance of this Court’s prior “eviction

moratorium” and “foreclosure moratorium”

jurisprudence, where interim compensation such as

“reasonable rent” during the course of the moratoria

saved such legislation in the face of Contracts Clause

and similar constitutional challenges. Pet. App. 22–25.

See, e.g., Home Bldg. & Loan Ass’n v. Blaisdell, 290

U.S. 398, 432 (1934) (conditioning protection under

foreclosure moratoria on payment of “reasonable rent”

during emergency period); Block v. Hirsh, 256 U.S. 135,

153–54 (1921) (upholding eviction moratorium in face

of constitutional attack where “[m]achinery is provided

to secure to landlord reasonable rent” during

emergency); W.B. Worthen Co. v. Kavanaugh, 295 U.S.

56, 61 (1935) (striking down foreclosure moratorium

the year after Blaisdell was decided where the

moratorium was not conditioned on payment of any

rent or other compensation during occupancy by

defaulting party).

7

The Ninth Circuit did not apply variable scrutiny to

AAGLA’s Contract Clause claim based on the severity

of the impact and, instead, deferred to the City’s

determination of reasonableness without determining

whether the Eviction Moratorium even effected a

“substantial impairment” of existing lease agreements.

1. Legal Framework for Contracts Clause

Challenges

Article I, Section 10 of the United States

Constitution provides in part: “No State shall . . . pass

any Law impairing the Obligation of Contracts.” While

“facially absolute,” the Contracts Clause’s “prohibition

must be accommodated to the inherent police power of

the State ‘to safeguard the vital interests of its people.’”

Energy Reserves Grp., Inc. v. Kansas Power & Light

Co., 459 U.S. 400, 410 (1983) (quoting Blaisdell, 290

U.S. at 434).

This Court has established a three-part test to

determine whether a particular law runs afoul of the

Contracts Clause. The “threshold inquiry” asks

whether the law substantially impairs an existing

contractual relationship. Energy Reserves, 459 U.S. at

411. “The severity of the impairment is said to increase

the level of scrutiny to which the legislation will be

subjected.” Id. The interfering law need not result in

the “[t]otal destruction of contractual expectations” in

order to constitute a “substantial impairment.” Id. In

determining whether a law “substantially impairs”

existing contracts, courts are to consider the extent to

which the contractual relationship has historically been

subject to the same type of regulation in the past. Id. at

411. Only past regulations on the same specific subject

8

matter are relevant. Veix v. Sixth Ward Bldg. & Loan

Ass’n, 310 U.S. 32, 38 (1940) (“When he purchased into

an enterprise already regulated in the particular to

which he now objects, he purchased subject to further

regulation on the same topic.”) (emphasis added).

Once a law is found to “substantially impair” an

existing contractual relationship, the inquiry shifts to

whether the interfering law or regulation serves a

“legitimate public purpose” and whether the law is

“reasonably conditioned” to effectuate that public

purpose. Allied Structural Steel Co. v. Spannaus, 438

U.S. 234, 245 (1978); see also U.S. Trust Co. of New

York v. New Jersey, 431 U.S. 1, 22 (1977). Again, the

greater the impairment, the more scrutiny the

interfering regulation or law will receive. Allied

Structural Steel Co., 438 U.S. at 245.

2. The District Court Proceedings

AAGLA is an association comprised of thousands of

rental housing providers and managers located in and

around the County of Los Angeles, including the

owners and managers of some 55,000 properties located

within the City of Los Angeles. Pet. App. 13. AAGLA

filed suit to enjoin and invalidate the City’s Eviction

Moratorium on various grounds, including that it

violates the Contracts Clause embodied in Article I,

Section 10 of the United States Constitution. Pet. App.

13–14. AAGLA argued, among other things, that it was

likely to succeed on the merits of its claim that the

Eviction Moratorium substantially impairs existing

lease agreements by preventing property owners from

exercising their right to initiate summary unlawful

detainer proceedings to replace defaulting tenants, and

9

that the Moratorium’s effective outright denial of

evictions in conjunction with its lack of attestation

requirements eviscerated any hope that it is based on

reasonable conditions.

On November 13, 2020, the Honorable Judge

Pregerson of the Central District of California issued

an Order denying AAGLA’s motion for preliminary

injunction. Pet. App. 59. In its Order, the Court

recognized both that “[c]rises of national scope require

national responses,” and that the Eviction Moratorium

“substantially impairs” lease agreements between

landlords and residential tenants because “the scope

and nature of the COVID-19 pandemic” found “no

precedent in the modern era, and that no amount of

prior regulation could have led landlords to expect

anything like the blanket Moratorium.” Pet. App. 32,

38, 41. The Court continued that “it would be difficult

to conclude that the Moratorium does not, at a

minimum, significantly interfere with landlords’

reasonable expectations.” Pet. App. 40.

Nonetheless, the Court found that AAGLA failed to

show a likelihood of success because, even though the

Moratorium substantially impaired existing contracts,

the Eviction Moratorium was a “reasonable” response

to an admittedly serious problem. Pet. App. 59.

Specifically, Judge Pregerson looked to this Court’s

pronouncement in Energy Reserves, 459 U.S. at 412,

which suggests that the “second prong” of a Contracts

Clause challenge looks to “whether the adjustment of

‘the rights and responsibilities of contracting parties [is

based] upon reasonable conditions and [is] of a

10

character appropriate to the public purpose justifying

[the legislation’s] adoption.’” (alterations original).

In its analysis, the Court leaned heavily upon the

City’s sweeping determinations relating to the putative

health, safety, and welfare justifications undergirding

the Eviction Moratorium because, as the Court

believed, there is no “specific prerequisite for

reasonableness.” Pet. App. 46. For example, in

discussing the impact of the Eviction Moratorium’s

provisions prohibiting interest charges and late fees,

the Court noted that it would not “second-guess” the

City’s determination that such provisions served the

alleged ends. Pet. App. 50, n.34. The Court also noted

that it would “defer to the City Council’s weighing of

the interests at stake” as to the more general question

of the Moratorium’s reasonableness. Pet. App. 46.

3. The Ninth Circuit’s Decision

AAGLA timely appealed to the Ninth Circuit Court

of Appeals, renewing its argument that the Eviction

Moratorium constituted a violation of the Contracts

Clause. As it did below, AAGLA argued that it was

likely to succeed on the merits because the Eviction

Moratorium lacked certain hallmark indicators of

reasonableness. AAGLA provided a comprehensive

analysis of various “emergency” moratoria evaluated by

this Court under the Contracts Clause and Due Process

Clause during tumultuous periods in our nation’s

history, and noted that those moratoria which

appropriately protected both parties’ interests typically

survived constitutional challenges, while laws that

favored only one of the contracting parties’ interests

were constitutionally infirm. See, e.g., W.B. Worthen

11

Co. v. Thomas, 292 U.S. 426, 433–34 (1934) (striking

down Arkansas foreclosure moratorium where no

protections were in place for the mortgagee and

explaining that, unlike the moratorium at issue in

Blaisdell that was found to be “reasonable, from the

standpoint of both mortgagor and mortgagee,” no such

even-handed protection was present in the Arkansas

law) (emphasis added). Moreover, while the Ninth

Circuit disagreed, AAGLA argued that the lack of

protections afforded to Los Angeles landlords in the

Eviction Moratorium, particularly the lack of any type

of assurance of payment or reasonable rent during the

emergency, rendered the Moratorium unreasonable.

This is particularly true in light of even more recent

Contracts Clause cases, where the Court’s review and

analysis of Blaisdell led this Court to conclude that

even the Blaisdell Court would have struck down the

foreclosure moratorium at issue in the case had it not

possessed limitations such as the requirement of

“reasonable rent” during the period of emergency. See

Allied Structural Steel Co., 438 U.S. at 242 (“The

Blaisdell opinion thus clearly implied that if the

Minnesota moratorium legislation had not possessed

the characteristics attributed to it by the Court, it

would have been invalid under the Contracts Clause of

the Constitution.”); U.S. Trust Co., 431 U.S. at 15–16

(recognizing that the law at issue in Blaisdell was

conditioned on the requirement that “a mortgagor who

remained in possession during the extension period

was required to pay a reasonable income or rental

value to the mortgagee”).

AAGLA also argued that the scrutiny to which a

challenged law is subjected under the Contracts Clause

12

depends on the severity of the impairment, citing this

Court’s opinion in Allied Structural Steel Co., 438 U.S.

at 245 (“The severity of the impairment measures the

height of the hurdle the state legislation must clear.

Minimal alteration of contractual obligations may end

the inquiry at its first stage. Severe impairment, on the

other hand, will push the inquiry to a careful

examination of the nature and purpose of the state

legislation.”). So, the argument went, because Judge

Pregerson found the Eviction Moratorium to

substantially impair private contracts and was extreme

by any measure, then something more than simple

deference was needed, and under a heightened level of

scrutiny, AAGLA was confident of ultimate success.

The Ninth Circuit decided to go in a different

direction. Quoting Energy Reserves, a case where this

Court found that “the reasonable expectations” of the

contracting parties had “not been impaired,” 459 U.S.

at 415, the Ninth Circuit concluded that “when the

government is not party to the contract being impaired,

‘courts properly defer to legislative judgment as to the

necessity and reasonableness of a particular measure.’”

Pet. App. 18. The Court glossed over the substantial

impairment analysis and jumped straight to the second

and third prongs of the Contracts Clause test, i.e.,

whether the impairing law served a legitimate public

interest and, if so, whether it was based on “reasonable

conditions.” In concluding that it was, the Ninth

Circuit noted that “given the challenges that COVID-19

presents, the Moratorium’s provisions constitute an

‘appropriate and reasonable way to advance a

significant and legitimate public purpose.’” Pet. App. 19

(quoting Sveen v. Melin, 138 S. Ct. 1815, 1822 (2018)).

13

Thus, the Court held that AAGLA could “prevail, if at

all, only if it can show that the provisions it challenges

were not ‘appropriate and reasonable.’” Pet. App. 19

(quoting Sveen, 138 S. Ct. at 1822). The Court affirmed

“because the district court properly deferred to local

officials in the reasonableness analysis under modern

Contracts Clause precedent.” Pet. App. 19 (citing

Energy Reserves, 459 U.S. at 413). In the face of a

single reference to Allied Structural Steel’s

pronouncement that there must be a “careful

examination” of the Moratorium’s provisions given the

substantiality of impairment, the Court held that

“AAGLA is unlikely to show that the eviction

moratorium is an unreasonable fit for the problems

identified.” Pet. App. 19.

4. Subsequent Decision of the Second Circuit

In an unrelated action, the Second Circuit recently

weighed in on a Contracts Clause challenge to a similar

local ordinance passed in the wake of COVID-19. See

Melendez v. City of New York, No. 20-4238-cv, 2021 WL

4997666 (Oct. 28, 2021). At issue in Melendez was a

challenge to, among other things, New York’s

“Guaranty Law” that renders permanently

unenforceable personal liability guaranties on certain

commercial leases, as well as for rent obligations

arising during a specified period in the pandemic. Id. at

*8. The district court dismissed plaintiffs’ amended

complaint pursuant to Rule 12(b)(6) in relevant part

because they failed to state a claim to the contrary that

the challenged law “advanced a legitimate public

purpose and was a reasonable and necessary response

to a ‘real emergency.’” Id. at *12. Though the district

14

court there did also find that plaintiff-appellants

plausibly alleged substantial impairment of their

contract rights. Id.

On appeal, Senior Circuit Judge Raggi for the

majority provided an exhaustive survey of this Court’s

Contracts Clause jurisprudence. Judge Raggi noted the

historic respect accorded to the Contracts Clause by

courts, which was understood for the majority of this

Country’s history to be “‘perhaps the strongest single

constitutional check on state legislation during our

early years as a Nation,’” as one would expect from the

plain text of the Clause. Id. at *20 (quoting Allied

Structural Steel, 438 U.S. at 241). Judge Raggi then

outlined the Clause’s purported fall from grace, noting

that in Blaisdell, this Court for the first time (over a

spirited dissent by four Justices) “provided a full

rationale for police power impairment of private

contracts, replacing a strict textual view of the

Contracts Clause with one that relied on a balancing

principle.” Melendez, 2021 WL 4997666, at *23. The

Second Circuit noted that both judges and academics

have since strongly criticized the balancing approach to

the Contracts Clause. Id. at *24–25.

Despite Blaisdell and progeny, the Second Circuit

understood that “one thing is clear: the Court has

specifically rejected the idea that the Clause is ‘without

meaning in modern constitutional jurisprudence, or

that its limitation on state power [is] illusory.’” Id. at

*27 (quoting United States Tr. Co. v. New Jersey, 431

U.S. 1, 16 (1977)) (alteration original). As such,

Contracts Clause claims are not guided by “seemingly

limitless deference to legislative judgments impairing

15

contracts,” but rather require that for “the second step

of [the] analysis,” courts must look to the severity of

the burden to determine the level of scrutiny. Id. at *28

(quoting Allied Structural Steel, 438 U.S. at 245 (“[t]he

severity of the impairment measures the height of the

hurdle the state legislation must clear”)).

In other words, the Second Circuit now holds that

Contracts Clause analyses necessarily involve a

variable level of scrutiny, and something more than

mere rational basis applies. Id. (quoting Allied

Structural Steel, 438 U.S. at 245 (“While an

impairment causing only ‘[m]inimal alteration of

contractual obligations may end the inquiry at its first

stage,’ i.e., without consideration of purpose or means,

‘[s]evere impairment . . . will push the inquiry to a

careful examination of the nature and purpose of the

state legislation.’”)). The standard “is more demanding

than the rational basis review that applies when

legislation is challenged under the Due Process

Clause,” although “it is more deferential to legislative

judgment than strict scrutiny.” Id. at *30.

Turning to the merits, the Second Circuit applied

this framework to find that the plaintiff-appellants had

stated a “sufficiently plausible Contracts Clause

challenge to the Guaranty Law to withstand

dismissal.” Id. In so holding, the Court expressly

rejected the defendant City’s argument that courts

must afford “customary deference” to legislative

judgments (i.e., rational basis) and instead must apply

the “variable standard” of review. Id. at *32. While the

Court expressed some concern that the variable

standard will lead to “unpredictability,” “until the

16

Supreme Court instructs otherwise, we must endeavor

faithfully to apply it in conducting the ‘careful

examination’ of a substantial contract impairment[.]”

Id.

REASONS FOR GRANTING THE PETITION

A. Certiorari Should Be Granted to Resolve a

Conflict Between the Courts of Appeals.

The Ninth and Second Circuits are now squarely

split on the question of the standard of review that

applies to Contracts Clause challenges to local laws

affecting private contracts.

On one hand, the Ninth Circuit has instructed that

courts look to whether a law is “appropriate and

reasonable,” and may even skip the substantial

impairment analysis altogether. Pet. App. 19. This test

is mere “rational basis” by another name: “Under

current doctrine, we must ‘refuse to second-guess’ the

City’s determination that the eviction moratorium

constitutes ‘the most appropriate way[] of dealing with

the problem[s]’ identified.” Pet. App. 21 (quoting

Keystone Bituminous Coal Ass’n v. DeBenedictis, 480

U.S. 470, 506 (1987)). The Ninth Circuit has clearly

shown how little bite this test provides. In applying it

to AAGLA’s claim, for instance, the Court noted that

“each of the provisions of the eviction moratorium that

AAGLA challenges may be viewed as reasonable

attempts to address that valid public purpose.” Pet.

App. 21 (emphasis added).

On the other hand, the Second Circuit has decidedly

established that courts should look first to the severity

of the impairment to gauge the applicable standard of

17

review. Depending on the substantiality of impairment,

courts in the Second Circuit then scrutinize a law to a

greater or lesser degree, but certainly varying from

something more that rational basis to something less

than strict scrutiny. Melendez, 2021 WL 4997666, at

*30.

Not only does the Ninth Circuit now find itself split

with the Second Circuit, it comes down on the wrong

side of the ledger. The Second Circuit was not engaging

in legal alchemy to hold that Contracts Clause

challenges involve a variable form of scrutiny. Rather,

as Judge Raggi ably explained, the Second Circuit

merely understood this Court to have meant what it

said in Allied Structural Steel: “[a]s the Court itself

stated,” minimal impairments lead to less scrutiny,

while “‘[s]evere impairment . . . will push the inquiry to

a careful examination of the nature and purpose’ of the

challenged state legislation.” Id. at *28, *32 (quoting

Allied Structural Steel, 438 U.S. at 245).

As support for its reasoning, the Ninth Circuit cites

primarily to three of this Court’s opinions: Sveen v.

Melin, 138 S. Ct. 1815 (2018), Energy Reserves, 459

U.S. 400, and Keystone Bituminous, 480 U.S. 470. But

a careful review of these cases shows that these

precedents do not inform the instant analysis as much

as the Ninth Circuit believed.

In Sveen, for instance, this Court considered a

Contracts Clause challenge to a statute that provided

for default revocation upon divorce of a life insurance

policy holder’s beneficiary designation to one’s spouse.

Id. at 1818. But in Sveen, this Court only reached the

first question of whether the law operated a substantial

18

impairment to existing contracts. Id. at 1821–22. The

Court only briefly explained in a single sentence that

the “second prong” of the analysis asks “whether the

state law is drawn in an ‘appropriate’ and ‘reasonable’

way to ‘advance a significant and legitimate public

purpose.’” Id. (citing Energy Reserves, 459 U.S. at

411–12). But because this Court in Sveen only reached

the first question, its holding and rationale has no

functional bearing on the second question. Indeed, in

Sveen, there was simply no “standard of review” to

apply because the law was found to not operate a

substantial impairment in the first place.

Energy Reserves, in turn, does suggest that if the

legislation operates a substantial impairment upon

private contracts, then “the State, in justification, must

have a significant and legitimate public purpose behind

the regulation . . . such as remedying of a broad and

general social or economic problem.” Energy Reserves,

459 U.S. at 411. Given that the private contracting

parties impacted by the Kansas law at issue had

expressly acknowledged in their contracts the

possibility the very price-setting arrangement that was

alleged to violate the Contracts Clause, the Court found

that the parties “contractual expectations” had not

been impaired, the minimal scrutiny applied to the

second and third prongs was appropriate even under a

variable standard of review. Id. at 416. Energy Reserves

also states plainly that “[t]he severity of the

impairment is said to increase the level of scrutiny to

which the legislation will be subjected.” Id. (citing

Allied Structural Steel, 438 U.S. at 245). Read together,

Sveen and Energy Reserves do nothing to vitiate the

main thrust of Allied Structural Steel — in other

19

words, the “variable scrutiny” applicable to Contracts

Clause claims appears to retain its vitality.

Finally, in Keystone Bituminous, this Court was

asked to consider whether certain portions of

Pennsylvania’s Subsidence Act violated the Contracts

Clause. 480 U.S. at 474. There, the district court

rejected petitioners’ Contracts Clause claim on the

grounds that because “only private contractual

obligations had been impaired, . . . it [was] appropriate

to defer to the legislature’s determinations concerning

the public purposes served by the legislation.” Id. at

480. For its part, the Court of Appeals agreed with the

district court “that a higher degree of deference should

be afforded to legislative determinations respecting

economic and social legislation affecting wholly private

contracts than when the State impairs its own

agreements,” and held that the impairment there “was

justified by the legislative finding[s].” Id. at 481. In

affirming the Court of Appeals, this Court noted (once

again citing Energy Reserves) that the legislation

survives the “second prong” of a Contracts Clause

challenge if it is based on reasonable conditions and is

of a character appropriate to the public purpose

justifying the legislation’s adoption. Id. at 505. In that

case, this Court “refuse[d] to second-guess

[Pennsylvania’s] determinations that these are the

most appropriate ways of dealing with the problem.”

Id. at 506.

This language from Keystone Bituminous, of course,

is the hook the Ninth Circuit chose to hang its hat

upon. Pet. App. 20. But therein lies the problem.

Keystone Bituminous does not directly reference Allied

20

Structural Steel’s pronouncement that merely deferring

to the legislature is improper; rather, as Allied

Structural Steel plainly provides, that may prove true

when the impairment is “minimal,” but more severe

impairments receive harsher scrutiny. Allied

Structural Steel, 438 U.S. at 245 (“The severity of the

impairment measures the height of the hurdle the state

legislation must clear.”).

After a careful review of this Court’s precedents, it

is evident that the Second Circuit reaches a stronger

conclusion. The Second Circuit is in good company.

Several other circuit courts that have considered

Contracts Clause challenges have also understood

Allied Structural Steel to provide a “variable scrutiny”

for such claims. See, e.g., Wisconsin Cent. Ltd. v. Pub.

Serv. Comm’n of Wisconsin, 95 F.3d 1359, 1370–71 (7th

Cir. 1996) (noting that Allied Structural Steel and

Energy Reserves brought “renewed vigor” to the Clause

such that “[t]he impairment inquiry is case-specific and

dictates the extent of further inquiry”); Elliott v. Bd. of

Sch. Trs. of Madison Consol. Schs., 876 F.3d 926, 937

(7th Cir. 2017) (“The degree of deference differs

depending on the severity of the impairment and on the

State’s self-interest.”); Lipscomb v. Columbus Mun.

Separate Sch. Dist., 269 F.3d 494, 505 (5th Cir. 2001)

(“The scrutiny to which the court subjects the state law

is proportional to the degree of impairment.”); Am.

Express Travel Related Servs. v. Sidamon-Eristoff, 669

F.3d 359, 368–69 (3d Cir. 2012) (“Where the contract is

between private parties, courts may ‘defer to legislative

judgment as to the necessity and reasonableness of a

particular measure.’ . . . But this review of legislative

judgment is more exacting than the rational basis

21

standard applied in the due process analysis.” (citing

Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467

U.S. 717, 733 (1984))); see also Honeywell, Inc. v.

Minnesota Life & Health Ins. Guaranty Ass’n, 110 F.3d

547, 557 (8th Cir. 1997) (Loken, J., concurring) (“The

latter two [Contract Clause] factors are interrelated.

‘The severity of the impairment measures the height of

the hurdle the state legislation must clear.’”).

The same is true for district court opinions. See, e.g.,

Vanguard Med. Mgmt. Billing, Inc. v. Baker, No. EDCV

17-965-GW(DTBX), 2018 WL 6137198 (C.D. Cal. Apr.

26, 2018) (“‘The severity of the impairment’ increases

‘the level of scrutiny to which the legislation will be

subjected,’ although ‘[t]otal destruction of contractual

expectations is not necessary for a finding of

substantial impairment,’ and ‘state regulation that

restricts a party to gains it reasonably expected from

the contract does not necessarily constitute a

substantial impairment.’”); Ross v. City of Berkeley, 655

F. Supp. 820, 827 (N.D. Cal. 1987) (“While complete

destruction of the rights of a contracting party is not

required to find an impermissible impairment, the

degree of contractual interference is critically

significant to the constitutional analysis.”); 21st

Century Oncology, Inc. v. Moody, 402 F. Supp. 3d 1351,

1358 (N.D. Fla. 2019) (“The severity of the impairment

is both the focus of the first step and a means to

calibrate the second step; that is, the more severe the

impairment, the higher the level of scrutiny a court will

apply.”); W. Indian Co. v. Gov’t of Virgin Islands, 643 F.

Supp. 869, 881 (D.V.I. 1986) (“The government has a

difficult burden to overcome at this second stage

because ‘the severity of the impairment measures the

22

height of the hurdle the [territorial] legislation must

clear.’ . . . Since the Legislature has completely

eliminated WICO’s rights, we must carefully scrutinize

the nature and purpose of the legislation.”).

Moreover, there is arguably now tension within the

Ninth Circuit as to the import of Allied Structural

Steel. In Campanelli v. Allstate Life Ins., Co., 322 F.3d

1086 (9th Cir. 2003), the Ninth Circuit was asked to

consider a Contracts Clause challenge to a state law

that revived certain time-barred insurance claims. In

discussing relevant Contracts Clause jurisprudence,

the Campanelli court opined that “[t]he threshold

inquiry in Contract Clause analysis is ‘whether the

state law has, in fact, operated as a substantial

impairment of a contractual relationship.’ . . . ‘The

severity of the impairment measures the height of the

hurdle the state legislation must clear.’ . . . The more

severe the impairment, the more searching the

examination of the legislation must be.” Id. at 1098

(quoting Energy Reserves, 459 U.S. at 411, and Allied

Structural Steel, 438 U.S. at 244–45). In the next

breath, however, the Campenelli court also explained

that “[u]nless the state is a party to the contract, courts

‘defer to legislative judgment as to the necessity and

reasonableness of a particular measure.’” Id. (quoting

Energy Reserves, 459 U.S. at 412–13). The Ninth

Circuit in Campanelli appears to conclude that two

mutually independent (and, in fact, irreconcilable)

principles apply: greater severity leads to greater

scrutiny, but courts must also defer to all legislative

enactments that do not affect public contracts. This

reading of this Court’s precedents limiting any form of

heightened scrutiny to merely laws affecting public

23

contracts is unsound, of course, because Allied

Structural Steel itself was a case regarding a state law

adjusting pension plan benefits between private

employers and employees. 438 U.S. at 238–39.

It is true that some courts have understood the test

to mean, as the Ninth Circuit did here, that “unless the

State is a party to the contract, as is usual in reviewing

economic or social legislation, the Court properly defers

to the judgment of the legislature as to the

reasonableness and necessity of the legislative action

at issue.” Lefrancois v. Rhode Island, 669 F. Supp.

1204, 1213 (D. R.I. 1987) (citing Energy Reserves, 459

U.S. at 412–13); see also, e.g., Nat’l Collegiate Athletic

Ass’n v. Miller, 795 F. Supp. 1476, 1487 (D. Nev. 1992)

(“The Supreme Court has held that the nature of the

contractual relationship involved determines the

standard of review. If the challenged state law is

alleged to have impaired a contractual relationship

involving only private parties, the court should

willingly defer to legislative judgment regarding the

reasonableness and the necessity of the state law.”).

But these opinions merely show that the question

presented by this petition remains in much need of

clarification from this Court.

In sum, the Ninth Circuit’s opinion is sure to serve

as a siren song, enticing future courts to short circuit

Contracts Clause claims by reducing their review to

simple deference. If this Court meant what it said in

Allied Structural Steel, this cannot stand.

24

B. Certiorari Should Be Granted Because This

Case Presents a Clean Vehicle to Address an

Issue of Nationwide Importance.

In this Court’s recent decision addressing the CDC’s

efforts to extend the national eviction moratorium,

Alabama Ass’n of Realtors v. Dep’t of Health & Human

Servs., 141 S. Ct. 2485, 2489 (2021), the Court

thoughtfully recognized the “millions” of landlords that

were “at risk of irreparable harm,” notwithstanding the

“CDC’s determination that landlords should bear a

significant financial cost of the pandemic.” And while

those landlords that were previously subject to the

CDC’s eviction moratorium are now free to reclaim

their property from defaulting tenants, state and local

governments throughout the nation, like Los Angeles,

have adopted even more aggressive eviction moratoria

directly destroying the primary contractual security

landlords have to protect against defaulting tenants —

the ability to evict.

The suffering experienced by these landlords is

evident from the numerous federal court lawsuits filed

against state and local governments seeking to enjoin

enforcement of these eviction moratoria. Many of these

plaintiffs, like AAGLA did here, sought to enjoin the

enforcement on Contracts Clause grounds. See, e.g.,

Baptiste v. Kennealy, 490 F. Supp. 3d 353, 382 (D.

Mass. 2020) (denying preliminary injunction on

Contracts Clause grounds); Heights Apartments LLC v.

Walz, 510 F. Supp. 3d 789, 797 (D. Minn. 2020)

(dismissing plaintiff’s Contracts Clause claim against

executive order limiting “landlords’ ability to file

eviction actions against residential tenants”); Auracle

25

Homes, LLC v. Lamont, 478 F. Supp. 3d 199, 222-26 (D.

Conn 2020) (denying motion for preliminary injunction

enjoining Connecticut Governor Lamont’s executive

orders limiting evictions during pandemic and finding

no likelihood of success on the merits of plaintiff’s

Contracts Clause claim); HAPCO v. City of

Philadelphia, 482 F. Supp. 3d 337, 349-55 (E.D. Pa.

2020) (denying association plaintiff’s motion for

preliminary injunction to enjoin Philadelphia’s eviction

moratorium and determining that plaintiff had not

demonstrated a likelihood of success on merits of

plaintiff’s Contracts Clause claim); Willowbrook

Apartment Assocs., LLC v. Mayor & City Council of

Baltimore , No. 20-CV-01818-SAG, 2021 WL 4441192

(D. Md. Sept. 27, 2021) (granting various government

motions for summary judgment and denying housing

provider plaintiffs motion for summary judgment

asserting eviction moratoria violated Contracts

Clause); Elmsford Apartment Assocs., LLC v. Cuomo,

469 F. Supp. 3d 148, 168–72 (S.D.N.Y. 2020) (rejecting

on the merits plaintiffs’ claim that Governor Cuomo’s

eviction moratoria violated Contracts Clause); Bols v.

Newsom, 515 F. Supp. 3d 1120, 1131 (S.D. Cal. 2021)

(denying County and City defendants’ motion to

dismiss Contracts Clause claim re local eviction

moratoria and finding plaintiff had adequately alleged

a viable claim).

The foregoing reflect a small sampling of the

hundred or more federal and state cases challenging

various local and state eviction moratoria adopted in

connection with the pandemic, many of which address

claims under the Contracts Clause. The pubic

importance of this issue is self-evident.

26

The Ninth Circuit’s decision in this case presents an

extraordinarily “clean vehicle” to address the

appropriate standard of review in this case. While

many of the eviction moratoria decisions addressing

Contracts Clause claims also address a number of other

claims (such as Due Process and Takings claims),

AAGLA only appealed Judge Pregerson’s denial of

AAGLA’s preliminary injunction motion under the

Contracts Clause. In addition, the Ninth Circuit panel

did not address the procedural issues for issuance of a

preliminary injunction (such as irreparable harm and

the equities attendant to issuance or denial of

provisional relief) and, thus, are not the subject of this

Petition. Because courts are disinclined to reach

constitutional questions if the matter may be disposed

of on other grounds, the Ninth Circuit’s decision to

address only AAGLA’s likelihood of success on the

merits signals that the panel did not consider the

procedural issues to pose a significant obstacle to

AAGLA’s request.

Finally, it seems fairly obvious that had the District

Court or the Ninth Circuit employed more than

rational basis scrutiny to determine whether the

Moratorium was “reasonably conditioned,” a different

result would obtain. Prior to the COVID-19 pandemic,

no emergency-era moratorium reviewed by this Court

under the Contracts Clause survived unless it provided

some reasonable compensation to landlords or

mortgagees while the defaulting party was still in

possession. See, e.g., Block v. Hirsh, 256 U.S. 135,

153–54 (1921) (upholding eviction moratorium

prohibiting rent increases in Washington D.C. where

“machinery” was in place to assure to landlord a

27

“reasonable rent”); W.B. Worthen Co. v. Kavanaugh,

295 U.S. 56, 61 (1935) (striking down foreclosure

moratorium where it did not condition relief upon

“payment of interest and taxes or the rental value of

the premises”).

The eviction moratoria adopted during the course of

the pandemic provide no assurances to landlords that

they will ever receive the rent payments to which they

were (and are) entitled under their respective leases. In

Los Angeles, landlords will never be made whole even

if they do receive back rent, given that, with a stroke of

a pen, the City eliminated the landlords’ ability to

recover late fees and interest on back rent. Thus, the

City has forced landlords to become involuntary

creditors to their highest risk tenants without any

return for the risk that has been foisted on them. In no

other context would the government even dare to

suggest, let alone mandate, that a particular class of

individuals may take receipt of goods or services on the

mere promise that the provider of the goods or services

may pursue compensation at some distant point in the

future. The City, along with countless agencies at all

levels of government, have decided that landlords

should shoulder the risk and, in addition, continue

honoring every contractual obligation landlords have

despite not receiving the sole consideration to which

landlords are entitled under their lease agreements —

the payment of monthly rent.

CONCLUSION

The petition for a writ of certiorari should be

granted.

28

Respectfully submitted,

Douglas J. Dennington

Counsel of Record

Jayson A. Parsons

Rutan & Tucker, LLP

18575 Jamboree Road, 9th Floor

Irvine, CA 92612

Telephone: (714) 641-5100

Facsimile: (714) 546-9035

ddennington@rutan.com