Petition for Writ of Certiorari — Enrique Jevons, as a Managing Member of Jevons Properties LLC, et al., Petitioners v. Jay Inslee, Governor of Washington, et al.

No. 23In the

Supreme Court of the United States

Enrique Jevons, as a managing

member of Jevon Properties, LLC, et al.,

Petitioners,

v.

Jay Inslee, in his official capacity

of the Governor of the State

of Washington, et al.,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of A ppeals for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

Philip A. Talmadge

Counsel of Record

A aron P. Orheim

Talmadge/Fitzpatrick

2775 Harbor Avenue SW,

Third Floor, Suite C

Seattle, WA 98126

(206) 574-6661

phil@tal-fitzlaw.com

Counsel for Petitioners

324828

i

QUESTIONS PRESENTED

1.

Because the Takings Clause of the Fifth

Amendment demands just compensation for

governmental takings, including temporary ones, did

the Ninth Circuit err in dismissing as moot a

challenge to Washington State’s COVID-19 eviction

moratoria by landowners who suffered great losses by

bearing the social burden of providing public housing

during the pandemic against their will because those

moratoria had ended by the time the case reached the

Ninth Circuit on appeal?

2.

When a Governor prohibits landowners from

evicting non-paying or rule-breaking tenants for

many months forcing those landowners to bear the

social burden of providing housing during a health

pandemic, has the State effected a regulatory taking

that demands just compensation under the Takings

Clause of the Fifth Amendment?

3.

Did the Ninth Circuit depart from the settled

precedent of this Court and other Circuits of the Court

of Appeals by concluding that the landlords could not

enforce the Takings Clause through a declaratory

judgment action?

ii

PARTIES TO THE PROCEEDING

Petitioners Enrique Jevons, as a managing

member of Jevon Properties, LLC, Freya K.

Burgstaller, as trustee of the Freya K. Burgstaller

Revocable Trust, Jay Glenn, and Kendra Glenn were

plaintiffs in the district court and appellants below.

Jay Inslee, in his official capacity of the

Governor of the State of Washington, and Robert

Ferguson, in his official capacity of the Attorney

General of the State of Washington, were defendants

in the district court and appellees below.

CORPORATE DISCLOSURE STATEMENT

Petitioner Jevon Properties, LLC has no parent

corporation or any publicly held corporation that owns

10% or more of their stock.

iii

STATEMENT OF RELATED CASES

•

Jevons v. Inslee, No. 1:20-CV-3182-SAB, U. S.

District Court for the Eastern District of

Washington. Judgment entered Sept. 21, 2020.

•

Jevons v. Inslee, No. 22-35050, U. S. Court of

Appeals for the Ninth Circuit. Judgment entered

Aug. 8, 2023.

•

Jevons v. Inslee, No. 23-2-01478-39, Yakima

County Superior Court for the State of

Washington. Complaint filed June 23, 2023.

There are no other proceedings in state or

federal courts, or in this Court, directly related to this

case within the meaning of this Court’s Rule 14(b)(1).

iv

TABLE OF CONTENTS

Page

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

PARTIES TO THE PROCEEDING ........................... ii

CORPORATE DISCLOSURE STATEMENT ............ ii

STATEMENT OF RELATED CASES ...................... iii

TABLE OF CONTENTS ........................................... iv

TABLE OF APPENDICES ........................................ vi

TABLE OF AUTHORITIES ..................................... vii

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

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

CONSTITUTIONAL AND STATUTORY

PROVISIONS AT ISSUE ...................................... 2

INTRODUCTION ....................................................... 2

STATEMENT OF THE CASE ................................... 3

(1)

Washington State’s Eviction Moratoria

Prevented Landlords from Evicting

Tenants for Lease Violations and Non

Payment of Rent During the COVID-19

Pandemic, Forcing them to Bear the

Burden Alone of Providing Public

Housing During a Time of National

Crisis .............................................................. 3

(2)

Procedural History ........................................ 6

REASONS FOR GRANTING THE PETITION......... 8

v

I.

II.

The Ninth Circuit Incorrectly Dismissed

this Case as Moot Even Though This

Court has Ruled that Temporary

Regulatory Takings Require Just

Compensation Under the Fifth

Amendment ................................................... 8

A.

The Ninith Circuit’s Mootness

Analysis Conflicts with this Court’s

Precedent and Precedent from

Other Circuits........................................ 8

B.

Mootness in the Takings Context Is

an Important Federal Question

that This Court Should Decide ........... 12

Whether a Taking Occurred During the

COVID-19 Pandemic Presents an

Important Federal Question That This

Court Should Consider ................................ 14

III. The Ninth Circuit Wrongfully Ruled

that Relief Was Unavailable In this

Declaratory Judgment Action ..................... 18

CONCLUSION ......................................................... 22

vi

TABLE OF APPENDICES

Page

APPENDIX A — MEMORANDUM OF THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT, FILED

AUGUST 8, 2023 ................................................. 1a

APPENDIX B — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF WASHINGTON,

FILED SEPTEMBER 21, 2021 ........................... 6a

APPENDIX C — PROCLAMATIONS OF THE

GOVERNOR OF THE STATE OF

WASHINGTON ................................................. 61a

vii

TABLE OF AUTHORITIES

Page(s)

Cases:

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

Human Servs.,

141 S. Ct. 2485 (2021) ............................... 2, 10, 17

Arkansas Game & Fish Comm’n v. United

States,

568 U.S. 23 (2012) ................................................. 9

Bayer v. Neiman Marcus Group, Inc.,

861 F.3d 853 (9th Cir. 2017) ............................... 13

Bols v. Newsom,

515 F. Supp. 3d 1120 (S.D. Cal. 2021) ................ 17

Brown v. Legal Found. of Washington,

538 U.S. 216 (2003) ............................................... 9

Cedar Point Nursery v. Hassid,

141 S. Ct. 2063 (2021) ............................... 8, 15, 20

Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226,

17 S. Ct. 581, 41 L. Ed. 979 (1897) ....................... 8

Chrysafis v. Marks,

141 S. Ct. 2482 (2021) ........................................... 5

City & County of San Francisco v. Garland,

42 F.4th 1078 (9th Cir. 2022)........................ 13, 14

City Bar, Inc. v. Edwards,

349 So.3d 22 (La. Ct. App. 2022) ........................ 17

Duke Power Co. v. Carolina Env. Study Group,

438 U.S. 59 (1978) .......................................... 19-20

viii

E. Enterprises v. Apfel,

524 U.S. 498 (1998) ............................................. 20

Edward B. Marks Music Corp. v. Charles K.

Harris Music Pub. Co.,

255 F.2d 518 (2d Cir. 1958)................................. 20

First English Evangelical Lutheran Church of

Glendale v. Los Angeles Cnty., Cal.,

482 U.S. 304 (1987) ....................................... 10, 11

Heights Apartments, LLC v. Walz,

30 F.4th 720 (8th Cir. 2022).......................... 14, 15

Kaiser Aetna v. United States,

444 U.S. 164 (1979) ............................................. 15

Knick v. Twp. of Scott, Pennsylvania,

139 S. Ct. 2162 (2019) ......................................... 20

Lingle v. Chevron U.S.A., Inc.,

544 U.S. 528 (2005) ............................................. 13

Pakdel v. City & Cnty. of San Francisco,

2017 WL 6403074 (N.D. Cal. Nov. 20, 2017)...... 20

Pakdel v. City & Cnty. of San Francisco,

California,

141 S. Ct. 2226 (2021) ......................................... 20

R. J. Widen Co. v. U.S.,

357 F.2d 988 (Ct. Cl. 1966) ................................... 9

Roman Catholic Diocese of Brooklyn v. Cuomo,

141 S. Ct. 63 (2020) ......................................... 2, 12

Ruckleshaus v. Monsanto,

467 U.S. 986 (1984) ............................................. 20

ix

Seiber v. United States,

364 F.3d 1356 (Fed. Cir. 2004) ..................... 10, 13

United States v. General Motors Corp.,

323 U.S. 373 (1945) ......................................... 9, 12

Winborne v. Doyle,

59 S.E.2d 90 (Va. 1950) ....................................... 21

Statutes & Other Authorities:

U.S. Const., amend. V .............. 1, 2, 6, 8, 9, 15, 17, 18

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

28 U.S.C. § 1291 ......................................................... 1

28 U.S.C. § 1331 ......................................................... 1

28 U.S.C. § 2202 ......................................................... 7

28 U.S.C. § 2221 ....................................................... 19

28 U.S.C. § 2221(a) ................................................... 19

Restatement (Second) of Judgments § 33 (1982) ..... 21

Sup. Ct. Rule 10(a) ............................................. 11, 21

Sup. Ct. Rule 10(c) .................................. 11, 12, 14, 21

1

PETITION FOR WRIT OF CERTIORARI

Petitioners Enrique Jevons, as managing

member of Jevons Properties LLC; Jevons Properties

LLC; Freya K. Burgstaller, as trustee of the Freya K.

Burgstaller Revocable Trust; Jay Glenn; and Kendra

Glenn, respectfully petition this Court for a Writ of

Certiorari to review the decision of the United States

Court of Appeals for the Ninth Circuit.

OPINIONS BELOW

The panel opinion of the Ninth Circuit Court of

Appeals is unpublished and included as Petitioners’

Appendix (“app.”) 1a-5a. The published decision of the

district court is available at Jevons v. Inslee, 561 F.

Supp. 3d 1082, 1107 (E.D. Wash. 2021 and is included

at app. 6a-60a.

JURISDICTION

The district court had jurisdiction under

federal question jurisdiction authorized under 28

U.S.C. § 1331 for petitioners claims under the Takings

Clause of the Fifth Amendment, the Due Process

Clause of the Fourteenth Amendment as it

incorporates the Takings Clause. The Ninth Circuit

had jurisdiction under 28 U.S.C. § 1291.

This Court has jurisdiction under 28 U.S.C. §

1254(1), given this timely filed petition filed from the

Ninth Circuit’s final decision entered August 8, 2023.

2

CONSTITUTIONAL AND STATUTORY

PROVISIONS AT ISSUE

This case involves the Takings Clause of the

Fifth Amendment which states “nor shall private

property be taken for public use, without just

compensation.”

INTRODUCTION

“[E]ven in a pandemic, the Constitution cannot

be put away and forgotten.” Roman Catholic Diocese

of Brooklyn v. Cuomo, 141 S. Ct. 63, 68 (2020) (per

curiam).

Time and again, this Court has reiterated that

government interference with private property rights

must conform to the protections afforded by our

Constitution. This is just as true during times of

peace as it is during times of war, pandemic, or other

emergency. If anything, this Court has rightfully

moved the needle further toward protecting the

private rights afforded by our Constitution in each

decision it has issued since the pandemic began. It

struck down prohibitions on gathering for worship 1

and a broad, federal eviction moratorium issued by

the Center for Disease Control (“CDC”). 2 In that

latter instance, it noted that it is inequitable to force

private landowners to bear the burden of providing

1 Roman Catholic Diocese of Brooklyn, supra.

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

Servs., 141 S. Ct. 2485 (2021).

3

public housing through the pandemic and denying

them an essential property right, the right to exclude

others.

In an outlier opinion, that conflicts with

precedent from this Court, the other Circuits of the

Court of Appeals, the Ninth Circuit wrongfully found

that the petitioner residential landowners’ request to

find a compensable taking based on Washington

State’s eviction moratoria was moot because those

moratoria were temporary and had ended. But

temporary takings are compensable under the

Takings Clause. By dodging review, the Ninth Circuit

denied the petitioners the protections guaranteed by

the Constitution, forcing them to bear the social

burden of providing public housing without just

compensation alone. The Ninth Circuit’s decision

conflicts with precedent from this and other courts

warranting certiorari.

STATEMENT OF THE CASE

(1)

Washington State’s Eviction Moratoria

Prevented Landlords from Evicting

Tenants for Lease Violations and Non

Payment of Rent During the COVID-19

Pandemic, Forcing them to Bear the

Burden Alone of Providing Public

Housing During a Time of National Crisis

The relevant facts are undisputed and subject

to significant publicity as states issued eviction

4

moratoria around the country in response to the

COVID-19 pandemic in early 2020.

In response to the pandemic’s outbreak in the

State of Washington, on March 18, 2020, Governor

Jay Inslee issued a series of proclamations, that

prevented residential landlords from evicting tenants

for nonpayment of rent. 3 Under these proclamations,

the owners of residential rental properties such as the

petitioners in this matter (“Owners”) were the only

people who were required by any of the Governor’s

emergency proclamations to continue to provide a

good or service without payment in return.

The Proclamations precluded eviction for

nonpayment of rent or violations of leasehold terms.

They provided lessors could only evict tenants if they

(a) provide an affidavit that the eviction is necessary

to respond to a significant and immediate risk to the

health, safety, or property of others created by the

resident; or (b) provide at least 60 days’ written notice

of intent to (i) personally occupy the premises as a

primary residence, or (ii) sell the property. 2-ER-110.

Washington’s moratoria were the only in the country

that did not even require self-certification by a tenant

of impact by COVID-19, which this Court ruled was

3 Governor Inslee signed Proclamation 20-19 on March

18, 2020, establishing a temporary moratorium on evictions in

Washington. The Governor issued subsequent proclamations on

April 16, 2020 (Proclamation 20-19.1), June 2, 2020

(Proclamation 20-19.2), July 24, 2020 (Proclamation 20-19.3),

October 14, 2020 (Proclamation 20.19-4), December 31, 2020

(Proclamation 20-19.5), and March 18, 2021 (Proclamation 2019.6). Governor Inslee issued another “bridge” proclamation on

June 29, 2021 (Proclamation 21-09.23). 61a-197a.

5

unconstitutional in. Chrysafis v. Marks, 141 S. Ct.

2482 (2021).

For months landlords in Washington were also

precluded from imposing fees for late payment,

regardless of the tenant’s ability to pay rent, treating

unpaid rent as an enforceable debt or financial

obligation, with a narrow exception, and using

deposits to cover unpaid rent even when a tenant

chooses to leave. Id.

These events have not only significantly

impacted Owners but have also negatively impacted

the availability of affordable rental housing in

Washington State. Owners facing untenable financial

choices have elected to cease renting properties—

either choosing to sell or leave homes empty—due to

the tremendous economic burden they were required

to shoulder in the furtherance of the public good. 2ER-239, 262.

The plaintiff/petitioners in this action are

landlords and property managers in Yakima,

Washington. 4

Petitioner Enrique Jevons is the

managing member of Jevons Properties, LLC, an

entity that owns and rents several hundred

residential properties and also manages rental units

for other real property owners. At the time the

lawsuit was filed, Jevons Properties, LLC had 171

tenants who were not current with their rent. The

The following uncontested facts are derived largely

from the amended complaint, 2-ER 235, and the opinion of the

district court 561 F. Supp. 3d at 1092; 14a-15a.

4

6

total amount of rent owed and unpaid, as of April

2021, was $266,509.98.

Petitioner Freya K. Burgstaller’s Freya K.

Burgstaller Revocable Trust owns twelve residential

properties in Yakima. In March 2020, Burgstaller

attempted to evict a tenant who had stopped paying

rent and created enough noise in her unit that a

neighboring tenant complained. During the eviction

process, the eviction moratorium came into effect and

the proceedings were halted. Burgstaller was unable

to pursue eviction and the tenant remained on the

property, despite noise complaints. 5

Petitioner Jay and Kendra Glenn are owners of

46 residential rental properties in Yakima. Most of

their rental units are lower-cost units, which cost

approximately $650 and $750 per month.

The

average market rate for a one-bedroom unit in

Yakima in 2020 was $769. The total amount due to

the Glenns from nonpaying tenants, at the time of

filing, was $99,728.

(2)

Procedural History

Owners filed their case on October 29, 2020,

amending it once on May 3, 2021. 2-ER-194-235.

They claimed the moratoria offend the Takings Clause

of the Fifth Amendment to the U.S. Constitution,

Takings Clause of the Washington State Constitution,

5 Freya K. Burgstaller passed away during the pendency

of this appeal. A motion is forthcoming to substitute the party in

interest in this case.

7

and Due Process Clause of the Fourteenth

Amendment to the U.S. Constitution. Id. The parties

cross moved for summary judgment in April and May

2021. 1-ER-1-44. They asked declaratory relief under

28 U.S.C. § 2202, seeking a ruling from the district

court that a compensable taking occurred. Id. 6

On September 21, 2021, the District Court for

the Eastern District of Washington ruled that, even

though the moratoria had ended, the Owners’ claims

were not moot. Jevons, 561 F. Supp. 3d at 1093-95.

But it held that no compensable “per se physical

taking” occurred, and that declaratory relief was not

available. Id. at 1103-09.

On appeal, the Ninth Circuit ruled that the

Owners’ case was moot because Washington’s eviction

moratoria had ended. 4a. It did not reach the

substantive question of whether a compensable taking

occurred.

This timely petition follows.

6 Owners also sought to show that the State violated the

Contracts Clause by unconstitutionally interfering with private

leases, but they do not raise that issue for purposes of this

petition.

8

REASONS FOR GRANTING THE PETITION

I.

The Ninth Circuit Incorrectly Dismissed

this Case as Moot Even Though This Court

has Ruled that Temporary Regulatory

Takings Require Just Compensation

Under the Fifth Amendment

A.

The Ninith Circuit’s Mootness

Analysis Conflicts with this Court’s

Precedent and Precedent from

Other Circuits

The Ninth Circuit wrongfully dismissed the

Owners’ appeal on mootness grounds. Essentially, it

held that because the moratoria ended, there was no

relief it could grant and no “live controversy” existed.

4a. The Ninth Circuit erred, and its opinion conflicts

with precedent from this Court and other Circuits of

the Court of Appeals.

Our Fifth Amendment requires that “nor shall

private property be taken for public use, without just

The operative question in any

compensation.” 7

takings case is simply “whether the government has

physically taken property for itself or someone else—

by whatever means—or has instead restricted a

property owner’s ability to use his own property.”

Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2072

(2021). This Court recognizes that a taking can be

7 The Takings Clause applies to the States through the

Fourteenth Amendment. Chicago, B. & Q.R. Co. v. Chicago, 166

U.S. 226, 17 S. Ct. 581, 41 L. Ed. 979 (1897).

9

physical or regulatory because “Government action

that physically appropriates property is no less a

physical taking because it arises from a regulation.”

Id.

Because the Fifth Amendment requires just

compensation for any taking, it makes no difference

whether the taking has ceased by the time a citizen is

able to come to court. Put another way, temporary

takings are compensable. This Court has “confirm[ed]

that takings temporary in duration can be

compensable.” Arkansas Game & Fish Comm’n v.

United States, 568 U.S. 23, 32 (2012) (citing cases); see

also, e.g., R. J. Widen Co. v. U.S., 357 F.2d 988, 996

(Ct. Cl. 1966) (“Temporary takings are recognized in

the law of federal eminent domain” and require

payment of just compensation during time the

government effected a taking temporarily) (past

taking occurred for which compensation must be paid

when federal engineers temporarily entered plaintiffs

land to construct flood control measures) (citing, e.g.,

United States v. General Motors Corp., 323 U.S. 373,

382 (1945) (temporary taking of a portion of a building

to assist with the war effort was a taking

necessitating just compensation)); see also, Brown v.

Legal Found. of Washington, 538 U.S. 216, 233 (2003)

(“compensation is mandated when a leasehold is

taken and the government occupies the property for

its own purposes, even though that use is

temporary.”).

10

The truth that temporary takings present a

justiciable controversy should not have been difficult

for the Ninth Circuit. As the Federal Circuit has put

it, this Court “has recognized that property owners

should be compensated for temporary regulatory

takings as well as permanent ones.” Seiber v. United

States, 364 F.3d 1356, 1364 (Fed. Cir. 2004) (citing

First English Evangelical Lutheran Church of

Glendale v. Los Angeles Cnty., Cal., 482 U.S. 304

(1987) (interim ordinance preventing building on a

flood zone for a period of years, could constitute

compensable taking)). Such takings “are not different

in kind from permanent takings, for which the

Constitution clearly requires compensation,” because

the loss imposed on a property owner by a temporary

taking “may be great indeed,” First English, 482 U.S.

at 319.

“Temporary takings…may result…when the

government elects to discontinue regulations after a

taking has occurred.” Seiber, 364 F.3d at 1364. The

essential element of this type of temporary taking “is

a finite start and end to the taking.” Id.

This is precisely what Owners alleged in this

case. Washington State issued and then discontinued

regulations that deprived the Owners of their

property rights, the right to exclude tenants for

nonpayment of rent. See Alabama Ass’n of Realtors v.

Dep’t of Health & Human Servs., 141 S. Ct. 2485,

2489–90 (2021) (preventing landlords “from evicting

tenants who breach their leases intrudes on one of the

11

most fundamental elements of property ownership—

the right to exclude”). This put a finite start and end

on the taking, an “essential element” to stating a claim

for relief for a temporary taking, not a reason to dodge

review on mootness grounds. Id.

As this Court stated in First English,

“[i]nvalidation of the ordinance or its successor

ordinance after this period of time, though converting

the taking into a ‘temporary’ one, is not a sufficient

remedy to meet the demands of the Just

Compensation Clause.”

482 U.S. at 319.

By

dismissing their case on mootness grounds, the Ninth

Circuit impermissibly denied Owners a sufficient

remedy as required by our Constitution. Certiorari

review and reversal is necessary to correct the Ninth

Circuit’s faulty analysis, and ensure local government

does not have a carte blanche invitation to invade

private property interests temporarily with no

recourse.

A split of authority could not be clearer where

the Federal Circuit holds that finite end is an

“essential element” of a temporary takings claim

while the Ninth Circuit says its grounds to dismiss if

the regulation is rescinded on appeal. Sup. Ct. Rule

10(a). The Ninth Circuit got it wrong, because

invalidation of a taking does not provide “just

compensation” as required by the Fifth Amendment

and this Court’s precedent. First English, supra. Sup.

Ct. Rule 10(c).

12

Certiorari review is necessary to resolve this

obvious circuit split and departure from this Court’s

precedent. Supreme Court Rule 10(a), (c). It is a live,

justiciable controversy to determine whether a

temporary regulatory taking occurred when the

Owners were denied the right to exclude others from

their property without just compensation. Certiorari

review and reversal is warranted in this case.

B.

Mootness in the Takings Context Is

an Important Federal Question that

This Court Should Decide

The application of mootness to Takings Clause

cases is an important federal question that this Court

should decide. Sup. Ct. Rule 10 (c). Particularly, this

case calls on the Court to interpret and enforce the

Takings Clause and the right to just compensation

even in times of national crisis.

Throughout the past century, this Court has

stepped in at times of national crisis to confirm that

the protections of the Constitution still apply.

Whether in wartime as was the case with General

Motors Corp., where this Court held that a temporary

taking to assist with war effort constituted a

compensable taking. Or in pandemic as was the case

recently in Roman Catholic Diocese of Brooklyn,

where this Court struck down sweeping restrictions

on citizens right to gather for worship. “[E]ven in a

pandemic, the Constitution cannot be put away and

forgotten.” 141 S. Ct. at 68.

13

This is an issue of broad public import, that

strikes at the very heart of how the Constitution

outlines how our Republic functions.

Lingle v.

Chevron U.S.A., Inc., 544 U.S. 528, 537 (2005)

(“Government [cannot force] some people alone to bear

public burdens which, in all fairness and justice,

should be borne by the public as a whole” without just

compensation). Given this law, the Ninth Circuit’s

decision further conflicts with relevant decisions of

the Supreme Court.

Moreover, the Ninth Circuit’s analysis is

simply flawed. It cannot be left as the final word in a

case dealing with such an important topic.

The Ninth Circuit relied on Bayer v. Neiman

Marcus Group, Inc., 861 F.3d 853 (9th Cir. 2017) for

its mootness decision, but that is not a constitutional

takings case; it involved a Title VII discrimination

claim. True, the Court said, “adjudicating past

violations of federal law…is not an appropriate

exercise of federal jurisdiction.” Id. at 868. But that

case had nothing to do with past violations of the

Federal Constitution, especially temporary regulatory

takings which by their definition come with a finite

start and end. Seiber, 364 F.3d at 1364.

City & County of San Francisco v. Garland, 42

F.4th 1078, 1081 (9th Cir. 2022), cited by the Ninth

Circuit, is also completely off point. There, the

appellants challenged a law as violative of the Tenth

Amendment, but the Ninth Circuit had already

resolved the issue in controversy on the merits in a

14

previous case. Therefore, the injury about which the

plaintiff complained could not come to fruition.

This is a far cry from City & County of San

Franciso. The merits of this case have not been

resolved. The District Corut decision ostensibly

upheld by the Ninth Circuit conflicts with the Eighth

Circuit, which held in Heights Apartments, LLC v.

Walz, 30 F.4th 720 (8th Cir. 2022), that an eviction

moratorium promoted by the pandemic constitutes a

taking of property owners’ property, requiring

compensation.

In short, the Supreme Court could step in as the

doctrine of mootness in Takings Clause cases is being

inconsistently applied across the country on an issue

of national, constitutional importance. The Court

should grant review to settle this issue and ensure

uniform application of federal law.

II.

Whether a Taking Occurred During the

COVID-19

Pandemic

Presents

an

Important Federal Question That This

Court Should Consider

Aside from the mootness doctrine that the

Ninth Circuit bungled, the underlying issue in this

case presents one of substantial federal importance

that this Court should decide. Sup. Ct. Rule 10(c).

This Court should grant review and hold that a taking

occurred.

15

The Eighth Circuit has already concluded that

temporary eviction moratoria during the COVID-19

pandemic can constitute a compensable taking.

Heights Apartments, 30 F.4th 720. The Heights

Apartments court reasoned, “The well-pleaded

allegations”

that moratoriums “forbade

the

nonrenewal and termination of ongoing leases, even

after they had been materially violated” was

“sufficient to give rise to a plausible per se physical

takings claim under Cedar Point Nursery.” Id. at 733.

The Eighth Circuit followed this Court’s recent

precedent Cedar Point Nursery. Id. There, this Court

held that “access regulation” that grants persons the

right to enter another’s property “appropriates a right

to invade the growers’ property and therefore

constitutes a per se physical taking.” Id. The Court

noted, as the Owners have argued here, that the right

to exclude others, is “one of the most essential sticks

in the bundle of rights that are commonly

characterized as property.” Id. (citing Kaiser Aetna v.

United States, 444 U.S. 164, 176, 179–180 (1979)).

Thus, regulation that forces a property owner to suffer

physical occupation of property by other persons is a

compensable taking under the Fifth Amendment.

This is exactly what occurred here where

Owners and other landlords were forced to suffer

tenants occupying their land despite material

breaches of their leases. While this may be a

legitimate social policy during a time of crisis, the

Constitution demands that just compensation be paid

16

for this taking, or Washington has exceeded its

authority.

This issue is worthy of this Court’s attention.

In striking down the CDC’s federal eviction

moratorium as an unconstitutional exercise of federal

power, the Court explained the inequitable burden

such moratoria place on one subset of citizens –

residential lessors:

The moratorium has put the

applicants, along with millions of

landlords across the country, at risk of

irreparable harm by depriving them of

rent payments with no guarantee of

eventual recovery. Despite the CDC’s

determination that landlords should

bear a significant financial cost of the

pandemic, many landlords have

modest means. And preventing them

from evicting tenants who breach their

leases intrudes on one of the most

fundamental elements of property

ownership—the right to exclude…It is

indisputable that the public has a

strong interest in combating the spread

of the COVID-19 Delta variant. But our

system does not permit agencies to act

unlawfully even in pursuit of desirable

ends.

17

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

Servs., 141 S. Ct. 2485, 2489–90 (2021). Here, it may

be desirable to prevent homelessness due to the

COVID-19 pandemic, appropriating private property

for that public purpose, without providing just

compensation as required by the Fifth Amendment, is

“unlawful[].” Id. at 2490.

It is no wonder that other courts have started

to catch up to the clear direction from this Court that

uncompensated takings are actionable. E.g., Bols v.

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

(landlord’s challenge to local eviction moratoria based

on Contracts Clause and Fifth Amendment takings

claims stated plausible claims for relief); City Bar, Inc.

v. Edwards, 349 So.3d 22 (La. Ct. App. 2022) (local bar

owners stated a claim for an uncompensated taking

under the state constitution) (citing federal

authorities) (“certain individuals or businesses may

be called upon to suffer a greater loss for the public

good and should, in some cases, be compensated for

their greater loss in protecting the health and welfare

of the citizens of this State”).

Here, too, the Owners were ordered to suffer a

great loss for the purpose of “protecting the health and

welfare of the citizens of the state.” City Bar, Inc., 349

So.3d at 33. Lacking sufficient public housing, funds,

or possibly the political desire to provide the same,

Washington’s leaders commandeered its residential

landlords, by executive action, forcing them to provide

that housing to its citizens. It denied the Owners a

18

basic property right, the right to exclude tenants who

materially breached their lease for nonpayment of

rent, thereby becoming trespassers. The Owners

must be provided just compensation as the

Constitution requires.

Unfortunately, due to the Ninth Circuit’s

outlier jurisprudence, the Owners were denied the

basic protections of the Fifth Amendment. They were

denied the protections required by the Constitution

simply because their land is located in the jurisdiction

of the wrong circuit court. Review by this Court is

necessary to ensure uniform application of important

questions of federal law.

III.

The Ninth Circuit Wrongfully Ruled that

Relief

Was

Unavailable

In

this

Declaratory Judgment Action

Finally, the Ninth Circuit also incorrectly ruled

that no remedy could be fixed in the Owners’

declaratory relief action because it would be improper

to declare a taking occurred and then allow the

Owners to pursue compensation in State court. The

Ninth Circuit got it wrong.

The declaratory relief statute under which the

Owners brought their case, 28 U.S.C. § 2221 says,

“[A]ny court of the United States, upon the filing of an

appropriate pleading, may declare the rights and

other legal relations of any interested party seeking

such declaration, whether or not further relief is or

19

could be sought.” (emphasis added). 8 Thus, the

statute plainly permits this Court to rule on the live

controversy of whether a historical taking occurred,

the live controversy at issue here. See also, 28 U.S.C.

§ 2221 (“Further necessary or proper relief based on a

declaratory judgment or decree may be granted, after

reasonable notice and hearing, against any adverse

party whose rights have been determined by such

judgment.”).

This Court has allowed declaratory relief

claims as to whether a taking would or did occur. See,

e.g., Duke Power Co. v. Carolina Env. Study Group,

8 The statute says verbatim:

In a case of actual controversy within its

jurisdiction, except with respect to Federal

taxes other than actions brought under section

7428 of the Internal Revenue Code of 1986, a

proceeding under section 505 or 1146 of title

11, or in any civil action involving an

antidumping or countervailing duty proceeding

regarding a class or kind of merchandise of a

free trade area country (as defined in section

516A(f)(9) of the Tariff Act of 1930), as

determined by the administering authority,

any court of the United States, upon the filing

of an appropriate pleading, may declare the

rights and other legal relations of any

interested party seeking such declaration,

whether or not further relief is or could be

sought. Any such declaration shall have the

force and effect of a final judgment or decree

and shall be reviewable as such.

28 U.S.C. § 2221(a).

20

438 U.S. 59, 71 & n.15 (1978) (“the Declaratory

Judgment Act…allows individuals threatened with a

taking to seek a declaration of the constitutionality of

the disputed governmental action”); Ruckleshaus v.

Monsanto, 467 U.S. 986, 989-99, 1013 (1984); E.

Enterprises v. Apfel, 524 U.S. 498, 521-22 (1998);

Knick v. Twp. of Scott, Pennsylvania, 139 S. Ct. 2162,

2168 (2019).

This Court has also allowed declaratory relief

claims where the complaint alleges a per se physical

taking, as here. See, e.g., Cedar Point Nursery, 141 S.

Ct. at 2070, 2080 (declaring that the challenged

regulation effected a per se taking); Pakdel v. City &

Cnty. of San Francisco, California, 141 S. Ct. 2226,

2228 (2021) (ruling that takings claim without

seeking compensation 9 was justiciable; remanded for

resolution on the merits).

The Second Circuit addressed this issue in

Edward B. Marks Music Corp. v. Charles K. Harris

Music Pub. Co., 255 F.2d 518, 522 (2d Cir. 1958), a

case with which the Ninth Circuit now conflicts.

There, the Second Circuit held, “We take [28 USC §

2202] to mean that the further relief sought—here

monetary recompense—need not have been

demanded, or even proved, in the original action for

declaratory relief. The section authorizes further or

new relief based on the declaratory judgment.”

9 See Pakdel v. City & Cnty. of San Francisco, 2017 WL

6403074 at *3 (N.D. Cal. Nov. 20, 2017) (noting that the

complaint sought only declaratory relief).

21

(emphasis added). Nothing in Edward forbids a

plaintiff from seeking a “new” action for relief in state

court. See also, Restatement (Second) of Judgments §

33 (1982) (“A plaintiff who wins a declaratory

judgment may go on to seek further relief, even in an

action on the same claim which prompted the action

for a declaratory judgment. This further relief may

include damages which had accrued at the time the

declaratory relief was sought; it is irrelevant that the

further relief could have been requested initially.”)

(citing state and federal authorities); Winborne v.

Doyle, 59 S.E.2d 90, 94 (Va. 1950) (“Consequential or

incidental relief may be obtained in an action in which

a declaratory judgment is sought…whether such

other proceeding is by petition filed in that cause or in

a separate and independent action.”) (interpreting

functionally equivalent state statute that allows

“further relief” from declaratory judgment).

This also shows a nationwide conflict that this

Court could resolve. Sup. Ct. Rule 10(a), (c). After all,

the just compensation portion of the Takings Clause

must have teeth. States cannot dodge constitutionally

required compensation over convoluted declaratory

judgment jurisprudence where the just compensation

clause holds both the federal and local governments

accountable to the citizens of this Country.

22

CONCLUSION

For these reasons the Court should grant

certiorari review and reverse.

Respectfully submitted,

Philip A. Talmadge

Counsel of Record

Aaron P. Orheim

Talmadge/Fitzpatrick

2775 Harbor Avenue SW

Third Floor, Suite C

Seattle, WA 98126

(206) 574-6661

phil@tal-fitzlaw.com

APPENDIX

i

TABLE OF APPENDICES

Page

APPENDIX A — MEMORANDUM OF THE

UNITED STATES COURT OF APPEALS

FOR T HE NIN T H CIRCU I T, FILED

AUGUST 8, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

APPENDIX B — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF WASHINGTON,

FILED SEPTEMBER 21, 2021 . . . . . . . . . . . . . . . . 6a

A PPENDI X C — PROCLA M ATIONS OF

THE GOV ERNOR OF THE STATE OF

WASHINGTON . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61a

1a

A

APPENDIX A —Appendix

MEMORANDUM

OF THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT, FILED AUGUST 8, 2023

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 22-35050

ENRIQUE JEVONS, AS A MANAGING MEMBER

OF JEVONS PROPERTIES LLC; et al.,

Plaintiffs-Appellants,

v.

JAY INSLEE, IN HIS OFFICIAL CAPACITY

OF THE GOVERNOR OF THE STATE OF

WASHINGTON; ROBERT FERGUSON, IN HIS

OFFICIAL CAPACITY OF THE ATTORNEY

GENERAL OF THE STATE OF WASHINGTON,

Defendants-Appellees.

April 10, 2023, Argued and Submitted,

Seattle, Washington

August 8, 2023, Filed

Appeal from the United States District Court

for the Eastern District of Washington.

D.C. No. 1:20-cv-03182-SAB Stanley A. Bastian,

Chief District Judge, Presiding.

2a

Appendix A

MEMORANDUM*

Before: BYBEE and FORREST, Circuit Judges, and

GORDON,** District Judge.

Plaintiffs are rental property owners who challenged

the constitutionality of Washington State Governor Jay

Inslee’s state-wide moratorium on residential evictions

related to the COVID-19 pandemic. The district court

granted summary judgment in favor of Governor Inslee

and Washington Attorney General Robert Ferguson,

rejecting Plaintiffs’ claims. On appeal, Plaintiffs challenge

only the district court’s rejection of their claim for a

declaratory judgment that the eviction moratorium

violated the Takings and Contracts Clauses of the U.S

Constitution.1 We have jurisdiction under 28 U.S.C.

§ 1291, and we vacate and remand with instructions for

the district court to dismiss this case as moot.

The eviction moratorium that Plaintiffs challenge—

Proclamation 21-19—expired in June 2021, 2 and Governor

* This disposition is not appropriate for publication and is not

precedent except as provided by Ninth Circuit Rule 36-3.

** The Honorable Andrew P. Gordon, United States District

Judge for the District of Nevada, sitting by designation.

1. Plaintiffs did not appeal the district court’s rejection of their

Fourteenth Amendment Due Process Clause, Washington Takings

Clause, or injunctive relief claims. Any challenge related to these

claims is therefore forfeited. See Jones v. Allison, 9 F.4th 1136, 1139

n.6 (9th Cir. 2021).

2. Wash. Office of the Governor, Proclamation 20-19.6 (March

18, 2021), https://governor.wa.gov/sites/default/files/proclamations/

proc_20-19.6.pdf .

3a

Appendix A

Inslee’s “Bridge Proclamation” expired in October 2021. 3

Governor Inslee terminated Washington’s COVID-19

state of emergency, and all other related emergency

proclamations, in October 2022.4 In Plaintiffs’ own words,

they seek purely retrospective declaratory relief, i.e., a

declaration that Defendants “effected a temporary taking

and unconstitutionally interfered with their contractual

rights in the past.”

The mootness doctrine, “which is embedded in Article

III’s case or controversy requirement, requires that an

actual, ongoing controversy exist at all stages of federal

court proceedings.” Bayer v. Neiman Marcus Grp., 861

F.3d 853, 862 (9th Cir. 2017) (citation omitted). The test

for determining whether a claim for declaratory relief

is moot is whether “there is a substantial controversy,

between parties having adverse legal interests, of

sufficient immediacy and reality to warrant the issuance

of a declaratory judgment.” Ctr. for Biological Diversity v.

Lohn, 511 F.3d 960, 963 (9th Cir. 2007) (citation omitted).

“[A] declaratory judgment merely adjudicating past

violations of federal law—as opposed to continuing or

future violations of federal law—is not an appropriate

exercise of federal jurisdiction.” Bayer, 861 F.3d at 868.

3. Wash. Office of the Governor, Proclamation 21-09.2 (Sept. 30,

2021), https://governor.wa.gov/sites/default/files/2023-01/21-09.2%20

%20 -%20COVID-19%20Eviction%20bridge%20transition%20

Ext%20%28tmp%29.pdf .

4 . See Wa sh. O f f ice of t he G over nor, Pr ocl am a ti o n

20- 05.1 (Oct. 28, 2022), https://w w w.governor.wa.gov/sites/

defau lt / f i le s / pr o cl a m at ion s / 2 0 - 0 5 .1_%2 0 Cor on av i r u s%2 0

RESCISSION_%28tmp%29.pdf .

4a

Appendix A

Thus, this case is moot because the challenged activity—

the eviction moratorium—has expired and no longer has

a “continuing and brooding presence” that would have “a

substantial adverse effect” on Plaintiffs. See id. at 867

(quoting Seven Words LLC v. Network Sols., 260 F.3d

1089, 1098-99 (9th Cir. 2001)); see also Brach v. Newsom,

38 F.4th 6, 11 (9th Cir. 2022) (en banc) (holding that

claims for declaratory and injunctive relief against the

California Governor’s COVID-19 school-closure orders

were moot after rescission of those orders). Without a

live controversy for us to resolve, a bare declaratory

judgment that Defendants violated the Constitution in the

past would amount to an impermissible advisory opinion.

See City & Cnty. of S.F. v. Garland, 42 F.4th 1078, 1087

(9th Cir. 2022) (“What makes a declaratory judgment a

proper judicial resolution of a ‘case or controversy’ rather

than an advisory opinion is the settling of some dispute

which affects the behavior of the defendant towards the

plaintiff.” (cleaned up)).

We are unpersuaded by Plaintiffs’ arguments that

we may issue a declaratory judgment to “determine

whether a constitutional violation occurred,” with “the

remedy [to] be fixed later.”5 The Supreme Court cases

that Plaintiffs rely on for this proposition, such as Cedar

Point Nursery v. Hassid, 141 S. Ct. 2063, 210 L. Ed.

2d 369 (2021), are inapposite because they involved

challenges to operative laws. And although Plaintiffs

are correct that the Declaratory Judgment Act allows a

5. Plaintiffs do not meaningfully address whether either of

the recognized exceptions to the mootness doctrine—“voluntary

cessation” and “capable of repetition yet evading review”—apply. We

find these exceptions inapplicable for the same reasons articulated

in Brach. 38 F.4th at 11-12.

5a

Appendix A

party to seek “[f]urther necessary or proper relief based

on a declaratory judgment,” 28 U.S.C. § 2202, the statute

merely provides an additional remedy in federal court; it

cannot override the mootness doctrine. See City of Colton

v. Am. Promotional Events, Inc.-West, 614 F.3d 998, 1006

(9th Cir. 2010).

Plaintiffs indicated they seek to use a declaratory

judgment that a constitutional violation occurred to later

secure just compensation or damages in state court. The

issuance of a declaratory judgment for such a purpose

is barred by the Eleventh Amendment. See Green v.

Mansour, 474 U.S. 64, 72-73, 106 S. Ct. 423, 88 L. Ed.

2d 371 (1985); Native Vill. of Venetie I.R.A. Council v.

Alaska, 944 F.2d 548, 552 (9th Cir. 1991) (“[D]eclaratory

relief is not available if its sole efficacy would be as res

judicata in a subsequent state court action for retroactive

damages or restitution.”); see also Lund v. Cowan, 5 F.4th

964, 969 (9th Cir. 2021) (“The Eleventh Amendment does

not permit retrospective declaratory relief.”).

VACATED and REMANDED.

6a

B the united

Appendix B —Appendix

ORDER of

states DISTRICT COURT FOR THE EASTERN

DISTRICT OF WASHINGTON,

FILED SEPTEMBER 21, 2021

United States District Court for the

Eastern District of Washington

No. 1:20-CV-3182-SAB

ENRIQUE JEVONS, as managing member

of Jevons Properties LLC; JEVONS

PROPERTIES LLC; FREYA K. BURGSTALLER,

as trustee of the Freya K. Burgstaller

Revocable Trust; JAY GLENN;

and KENDRA GLENN,

Plaintiffs,

v.

JAY INSLEE, in his official capacity

as the Governor of the State of

Washington; and ROBERT FERGUSON, in

his official capacity of the Attorney

General of the State of Washington,

Defendants.

September 20, 2021, Decided

September 21, 2021, Filed

7a

Appendix B

ORDER GRANTING DEFENDANTS’

MOTION FOR SUMMARY JUDGMENT AND

DENYING PLAINTIFFS’ MOTION FOR

SUMMARY JUDGMENT

Before the Court are the parties’ cross-Motions for

Summary Judgment. ECF Nos. 22, 30. The Court heard

oral argument on the motions on August 24, 2021 by

videoconference. Richard Stephens appeared by video on

behalf of Plaintiffs Enrique Jevons; Jevons Properties,

LLC; Freya K. Burgstaller; Jay Glenn; and Kendra Glenn.

Cristina Sepe and Brian Rowe appeared by video on behalf

of Defendants Washington State Governor Jay Inslee and

Washington State Attorney General Robert Ferguson.

This action concerns several constitutional challenges

to Washington’s eviction moratorium enacted in response

to the COVID-19 pandemic. To mitigate the spread of

COVID-19 and prevent exacerbation of homelessness in

the state, Washington State Governor Jay Inslee issued

Proclamation 20-19 on March 18, 2020. The Proclamation

and subsequent revisions established a moratorium

on evictions, among other protective health and safety

measures. That eviction moratorium persists—although

under new conditions for when landlords and property

managers may pursue evictions and enforcement of rental

debt—through the Governor’s “Bridge Proclamation.”

After reviewing the parties’ briefing, oral argument,

and the applicable caselaw, the Court denied Plaintiffs’

Motion for Summary Judgment and granted Defendants’

Cross-Motion for Summary Judgment at the hearing.

8a

Appendix B

Upon reaching the merits of Plaintiffs’ arguments, the

Court held that Washington’s eviction moratorium does

not violate the Takings Clause, Contracts Clause, or Due

Process Clause of the United States Constitution. This

Order memorializes the Court’s ruling.

I. Facts1

A. The COVID-19 Outbreak and Washington’s Eviction

Moratorium

On February 29, 2020, Washington State Governor

Jay Inslee issued Proclamation 20-05, declaring a state

of emergency in Washington from the outbreak of novel

coronavirus SARS-CoV-2. The SARS-CoV-2 virus

causes coronavirus disease 2019 (“COVID-19”), a highly

contagious and potentially fatal respiratory tract infection.

The virus spreads primarily through close interactions via

respiratory droplets, and there is a lag of several days

before the onset of symptoms. Seniors and persons with

preexisting medical conditions are most vulnerable to

complications and death from COVID-19, and statistics

indicate that people of color disproportionately contract

and experience severe COVID-19 health outcomes.

Without a vaccine or highly effective treatment for

COVID-19 at the time of the outbreak, reducing person-toperson contact through community mitigation measures

was the most effective way of combatting transmission

and ensuring Washington’s healthcare system was not

1. The following facts are taken from the parties’ respective

statements of material facts and responses thereto. See ECF Nos.

23, 31, 38, 41.

9a

Appendix B

overwhelmed. Accordingly, Governor Inslee ordered

Washingtonians to stay home except for participation in

essential activities and businesses.

The Governor’s Office also recognized that the

COVID-19 pandemic would significantly reduce economic

output and income, making many tenants unable to afford

rent from the outset of the pandemic. Prior to the outbreak,

the state was facing a homelessness and housing instability

crisis. Between 2013 and 2017, over 130,000 adults in

Washington faced an eviction, and by 2018, homelessness

in the state reached Great Recession levels. Without

countermeasures, the Governor’s Office anticipated that

the COVID-19 pandemic’s economic dislocations would

result in mass evictions, exacerbating housing instability

and homelessness in the state. A rise in evictions, and the

lifting of the eviction moratoria generally, are associated

with an increase in COVID-19 infections and deaths.

Projections performed by the University of Washington

Institute for Health Metrics and Evaluation indicated that

mass evictions could have resulted in between 18,235 to

59,008 more eviction-attributable COVID-19 cases, 1,172

to 5,623 more hospitalizations, and 191 to 621 more deaths

in the state. Even under lockdown scenarios, containment

of COVID-19 was slower and less effective at reducing

the size of the pandemic when evictions were allowed to

continue.

The Washington State Department of Health (“DOH”)

was particularly concerned with outbreaks of COVID-19

among persons experiencing housing insecurity and

homelessness. As of April 25, 2021, the DOH identified

10a

Appendix B

202 COVID-19 outbreaks in homeless services or shelters.

People experiencing homelessness are typically at

increased risk of acquiring COVID-19 due to crowded

living situations. Housing insecure families may find

themselves in shared living conditions, which have been

found to increase contact with people and make compliance

with public health guidance difficult. People experiencing

homelessness are also at an increased risk for severe

COVID-19, due to a higher rate of underlying medical

conditions and co-morbidities.

For the foregoing reasons, Governor Inslee signed

Proclamation 20-19 on March 18, 2020, establishing a

temporary moratorium on evictions in Washington. The

Governor issued subsequent proclamations on April 16,

2020 (Proclamation 20-19.1), June 2, 2020 (Proclamation

20-19.2), July 24, 2020 (Proclamation 20-19.3), October

14, 2020 (Proclamation 20.19-4), December 31, 2020

(Proclamation 20-19.5), and March 18, 2021 (Proclamation

20-19.6), refining the moratorium and other health and

safety measures with each revision. While broadly

prohibiting the commencement of eviction proceedings,

the proclamations did not forgive any debt of unpaid

rent and stressed that tenants “who are not materially

affected by COVID-19 should and must continue to pay

rent.” Proc. 20-19.6, ¶ 7. The Governor’s public messaging

has also expressly stated that tenants should pay rent if

able and should communicate with landlords. Beginning

with Proclamation 20-19.1, the moratoria also prohibited

attempts to collect any such unpaid rent through

withholding of the tenant’s security deposit. E.g., Proc.

20-19.1, ¶ 26. Plaintiffs in this action primarily challenged

11a

Appendix B

the last rendition of the moratorium, Proclamation 20-19.6.

Proclamation 20-19.6 ended by its own terms on June 30,

2021, and by operation of subsequent legislation, which is

discussed in the following section. Id. at ¶ 26. The eviction

moratorium and attendant provisions are still in effect

through a Bridge Proclamation, however, which is effective

until September 30, 2021.

Following input from property owners, beginning with

Proclamation 29-19.1, the Governor’s Office permitted

landlords to treat unpaid rent as an enforceable debt

during the state of emergency, provided that the tenant

was offered, but refused, a reasonable payment plan

based on the financial, health, or other circumstances of

the tenant. The exception expressly placed the burden of

proof to enforce rental debt on landlords and property

managers. This decision was made because, in many cases,

tenants in genuine economic distress due to the pandemic

were unable to provide adequate proof of their distress.

The Governor’s Office reasoned that many tenants

have informal employment or non-traditional sources

of income and that, for these tenants, proving distress

is not as simple as submitting a copy of a termination

letter from an employer. A tenant who does not lose their

job could be facing pandemic-related economic or health

distress anyway, such as the burden of caring for family

members who lost their jobs or being unable to provide

for themselves. The revised moratorium thus placed the

burden of proof on landlords and property managers

based on the state’s belief that not all tenants in need of

protection were able to submit a declaration of hardship.

12a

Appendix B

Overall, during the COVID-19 public health crisis,

over 1.6 million Washingtonians have filed unemployment

claims, and the state’s unemployment rate has exceeded

its Great Recession peak. Through the first four months of

2021, over 265,000 new unemployment claims were filed,

demonstrating that the job crisis persisted over a year

after COVID-19 emerged. Recent census survey data

reported that 10.7% of renters in Washington (160,342

people) were behind on their rent, and 17.8% of renters

(265,342 people) in Washington reported having little

or no confidence in their ability to pay rent. An analysis

by the Aspen Institute found that 649,000 to 789,000

people in Washington—up to 10.3% of the state’s entire

population—would be at risk of eviction without the state’s

eviction moratorium. During the pandemic, at least 18,000

more Washingtonians have relied on cash assistance and

160,000 more on food assistance. The Court also notes that

the Eastern District of Washington, which encompasses

most of the state’s landmass, faces unique and ongoing

challenges from the COVID-19 pandemic. Vaccinations

in eastern Washington have lagged behind the rest of the

state for numerous reasons, including misinformation and

lack of accessibility. 2

2. Annette Cary, Tri-Citians Slower Than Others to Get the

COVID Vaccine. What’s the Holdup?, Tri-City Herald (Apr. 14,

2021 07:43 P.M.), https://www.tri-cityherald.com/news/coronavirus/

article250299784.html (last accessed Sept. 20, 2021); Danny

Westneat, The Political Vaccine Divide in Washington State Is

Widening—And COVID Rushes In, T he Seattle Times (May 2,

2021, 1:17 P.M.), https://www.seattletimes.com/seattle-news/politics/

the-political-vaccine-divide-in-washington-state-is-widening-andcovid-rushes-in/ (last accessed Sept. 20, 2021).

13a

Appendix B

B. Senate Bill 5160 and the Housing Stability “Bridge”

Proclamation

In April 2021, Senate Bill 5160 (“SB 5160”) was

adopted by the Washington Legislature and signed into

law by Governor Inslee. Engrossed Second Substitute

S.B. 5160, 67th Leg., Reg. Sess. (Wash. 2021), enacted as

2021 Wash. Sess. Laws, ch. 115. The legislation provides

tenants certain protections during and after the public

health emergency. Sections 7 and 8 of SB 5160 established

an eviction resolution pilot program for nonpayment of

rent and a right to legal representation in eviction cases,

respectively. Section 7 also authorized landlord access

to certain rental assistance programs. While SB 5160

became effective on April 22, 2021, localities are still

working to implement the rental assistance and eviction

resolution pilot programs in their jurisdictions. In Yakima

County, where Plaintiffs are located, both programs are

fully operational.

Due to the delay in implementation, Governor Inslee

issued a housing stability “bridge” proclamation on June

29, 2021, which was intended to “bridge the operational

gap between the eviction moratorium enacted by

prior proclamations and the protections and programs

subsequently enacted by the Legislature.” Proc. 2109, ¶ 23. With respect to COVID-19-related rent that

accrued from February 29, 2020, the Bridge Proclamation

continues to prohibit eviction proceedings based in part on

unpaid rent if the landlord has “no attempt” to establish

a “reasonable repayment plan” with a tenant, as defined

by SB 5160, or the landlord and tenant cannot agree on a

14a

Appendix B

plan and no local eviction resolution pilot program exists

per SB 5160. Id. at ¶ 31. Further, before a landlord may

pursue eviction proceedings, a tenant must be provided

with, and must reject or fail to respond within 14 days of

receipt of, a notice of an opportunity to participate in the

rental assistance program and eviction resolution pilot

programs established by SB 5160. The programs must be

operational at the time the notice is sent. Id.; ¶ 25.

C. Plaintiffs in This Action

Plaintiffs in this action are landlords and property

managers in Yakima, Washington. Plaintiff Enrique

Jevons is the managing member of Jevons Properties,

LLC, an entity that owns and rents several hundred

residential properties and also manages rental units for

other real property owners. At the time of Plaintiffs’ filing,

Jevons Properties, LLC had 171 tenants who were not

current with their rent. The total amount of rent owed

and unpaid to the entity, as of April 2021, was $266,509.98.

Plaintiff Freya K. Burgstaller is the trustee of the

Freya K. Burgstaller Revocable Trust. The Trust owns

twelve residential properties in Yakima. In March 2020,

Ms. Burgstaller attempted to evict a tenant who had

stopped paying rent and created enough noise in her unit

that a neighboring tenant complained. During the eviction

process, the eviction moratorium came into effect and the

proceedings were halted. Since then, Ms. Burgstaller

has been unable to pursue eviction and the tenant has

remained on the property, despite noise complaints.

15a

Appendix B

Plaintiffs Jay and Kendra Glenn are owners of fortysix residential rental properties in Yakima. Most of the

Glenns’s rental units are lower-cost units, which cost

approximately $650 and $750 per month. The average

market rate for a one-bedroom unit in Yakima for fiscal

year 2020 was $769. The total amount due to the Glenns

from nonpaying tenants, at the time of filing, was $99,728.

The demand for rental housing in Yakima is high, in

part from a shortage of rental properties. Throughout

the moratorium, Plaintiffs have remained subject to state

and local property taxes, in addition to paying utilities,

mortgages, and maintaining and repairing their rental

properties. In the personal experience of several Plaintiffs,

tenants are hesitant to provide financial information or

details regarding their health to their landlords, making

it difficult to establish reasonable payment plans for

individual tenants. Plaintiffs have not availed themselves

of the SB 5160 programs now operational in Yakima

County.

II. Procedural History

Plaintiffs filed the above-captioned lawsuit against

Defendants on October 29, 2020, ECF No. 1, and a

subsequent Amended Complaint on May 3, 2021, alleging

that Washington’s eviction moratorium violated provisions

of the Washington State Constitution and United States

Constitution, ECF No 27. They claimed the moratorium

offends the Contracts Clause of the U.S. Constitution;

Takings Clause of the Fifth Amendment to the U.S.

Constitution; Takings Clause of the Washington State

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Appendix B

Constitution; and Due Process Clause of the Fourteenth

Amendment to the U.S. Constitution. Id. Defendants filed

an Answer to the Amended Complaint denying all claims

on May 11, 2021. ECF No. 29.

Plaintiffs filed their Motion for Summary Judgment on

April 30, 2021. ECF No. 22. Defendants filed their CrossMotion for Summary Judgment on May 21, 2021. ECF No.

30. The parties also submitted supplemental briefing on

the impact of Cedar Park Nursery v. Hassid, U.S. , 141

S.Ct. 2063, 210 L. Ed. 2d 369 (2021). ECF Nos. 48, 52,

55, 60. The Court heard oral argument on the motions by

videoconference on August 24, 2021.

III. Legal Standard

Summary judgment is appropriate “if the movant

shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(a). There is no genuine issue

for trial unless there is sufficient evidence favoring

the non-moving party for a jury to return a verdict in

that party’s favor. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 250, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

The moving party has the initial burden of showing the

absence of a genuine issue of fact for trial. Celotex Corp.

v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 91 L. Ed. 2d

265 (1986). If the moving party meets its initial burden,

the non-moving party must go beyond the pleadings and

“set forth specific facts showing that there is a genuine

issue for trial.” Anderson, 477 U.S. at 248.

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Appendix B

In addition to showing there are no questions of

material fact, the moving party must also show it is

entitled to judgment as a matter of law. Smith v. Univ.

of Wash. Law Sch., 233 F.3d 1188, 1193 (9th Cir. 2000).

The moving party is entitled to judgment as a matter of

law when the non-moving party fails to make a sufficient

showing on an essential element of a claim on which the

non-moving party has the burden of proof. Celotex Corp.,

477 U.S. at 323. The non-moving party cannot rely on

conclusory allegations alone to create an issue of material

fact. Hansen v. United States, 7 F.3d 137, 138 (9th Cir.

1993).

When considering a motion for summary judgment,

a court may neither weigh the evidence nor assess

credibility; instead, “the evidence of the non-movant is to

be believed, and all justifiable inferences are to be drawn

in his favor.” Anderson, 477 U.S. at 255. Where, as here,

parties submit cross-motions for summary judgment,

‘[e]ach motion must be considered on its own merits.’”

Fair Hous. Council of Riverside Cty., Inc. v. Riverside

Two, 249 F.3d 1132, 1136 (9th Cir. 2001). Accordingly, it

is the district court’s duty to “review each cross-motion

separately . . . and review the evidence submitted in

support of each cross-motion.” Id.

IV. Discussion

The Court finds, and the parties appear to agree, that

no material disputes of fact preclude summary judgment

in this matter. The Court thus turns to the merits of the

parties’ arguments.

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Appendix B

A. Jurisdiction

1.

Whether Plaintiffs’ Claims are Moot

Defendants argue that the Court lacks jurisdiction

to consider Plaintiffs’ claims in this action because they

are mooted by cessation of Proclamation 20-19.6, which

formally ended on June 30, 2021. Defendants also formerly

contended that Plaintiffs lacked Article III standing

because their purported injuries were not traceable to

the Washington eviction moratorium, as opposed to the

federal eviction moratorium.

In contrast, Plaintiffs contend that their claims are not

moot because the state eviction moratorium continues—

albeit under different conditions—through the Governor’s

Bridge Proclamation. The heart of their argument is that,

because “the inability to treat rent as an enforceable

debt for the time period of the [moratorium] continues,”

so does their injury and the controversy in this action.

ECF No. 37 at 11. With respect to Defendants’ standing

claim, Plaintiffs previously argued that their injury was

directly traceable to Washington’s eviction moratorium

because the state moratorium was more restrictive than

its federal counterpart.

a.

Legal Standard

A case becomes moot “’when the issues presented

are no longer ‘live’ or the parties lack a legally cognizable

interest in the outcome.’” Already, LLC v. Nike, Inc., 568

U.S. 85, 91, 133 S. Ct. 721, 184 L. Ed. 2d 553 (2013) (quoting

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Appendix B

Murphy v. Hunt, 455 U.S. 478, 481, 102 S. Ct. 1181, 71 L.

Ed. 2d 353 (1982)). A party asserting mootness “bears

the heavy burden of establishing that there remains no

effective relief a court can provide.” Bayer v. Neiman

Marcus Grp., Inc., 861 F.3d 853, 862 (9th Cir. 2017). “’The

question is not whether the precise relief sought at the

time the case was filed is still available,’ but ‘whether there

can be any effective relief.’” Id. (quoting McCormack v.

Herzog, 788 F.3d 1017, 1024 (9th Cir. 2015)). Standing and

mootness are similar doctrines in some respects: “Both

require some sort of interest in the case, and both go to

whether there is a case or controversy under Article III.”

Jackson v. Calif. Dep’t of Mental Health, 399 F.3d 1069,

1072 (9th Cir. 2005); United States v. Sanchez-Gomez, U.S.

, 138 S.Ct. 1532, 1537, 200 L. Ed. 2d 792 (2018) (“A case that

becomes moot at any point during the proceedings is ‘no

longer a “Case” or “Controversy” for purposes of Article

III,’ and is outside the jurisdiction of the federal courts.”).

b. Discussion

In this case, Plaintiffs’ claims are not moot. The Bridge

Proclamation, which is operational until September 30,

2021, represents a continuation of several provisions that

Plaintiffs allege are unconstitutional. Under the Bridge

Proclamation, eviction proceedings based in part on rent

that accrued from February 29, 2020 are prohibited until

the SB 5160 rental assistance and eviction resolution pilot

programs are operational and a landlord has attempted

to establish a reasonable repayment plan with a tenant.

Proc. 21-09, ¶¶ 25, 42-45 The tenant must also be given

notice of the opportunity to participate in the programs

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Appendix B

prior to eviction. Id. at ¶ 25. Further, for rent accruing on

August 1, 2021 through September 30, 2021, the Bridge

Proclamation prohibits Plaintiffs from seeking eviction

unless they have presented a reasonable repayment plan

to a tenant and none of the following are applicable: a

tenant (1) has made full payment of rent; (2) has made

partial payment of rent based on their individual economic

circumstances, as negotiated with the landlord; (3) has a

pending application for rental assistance; or (4) resides

in a jurisdiction in which the rental assistance program

is anticipating receipt of additional resources but has

not yet started their program or the program is not yet

accepting new applications for assistance. Id. at ¶ 35. The

Bridge Proclamation also continues to limit permissible

uses of security deposits until landlords and tenants have

the opportunity to resolve nonpayment through the SB

5160 programs, and it continues to prohibit the leveraging

of fees for late rent payment during the period of the

emergency (from February 29, 2020 to September 30,

2021). Id. at ¶¶ 34, 39.

These limitations speak to the heart of Plaintiffs’

claims that the moratorium violates their property rights,

contractual rights, and due process rights. Although

the Bridge Proclamation extends the state eviction

moratorium under different conditions, the transition did

not moot Plaintiffs’ claims. The precise relief sought by

Plaintiffs is different at this juncture, but the Court could

still fashion effective relief with respect to the Bridge

Proclamation. See Bayer, 861 F.3d at 862. Because the

Bridge Proclamation extends several actions challenged

by Plaintiffs as unconstitutional, the Court is unable

21a

Appendix B

to find that Plaintiffs’ claims are moot by cessation of

Proclamation 20-19.6. Plaintiffs have demonstrated that

their claims are not moot, and the Court has jurisdiction

to consider them.

In addition, since the parties filed briefs in this matter,

the federal eviction moratorium ended pursuant to the U.S.

Supreme Court’s decision to vacate a stay of enforcement

in Ala. Ass’n of Realtors v. Dep’t of Health and Human

Servs., 594 U.S. , 141 S.Ct. 2320, 210 L. Ed. 2d 984 (2021).

Because the federal eviction moratorium is inoperative,

it cannot be the source of Plaintiffs’ injuries in this case

and Defendants’ argument that Plaintiffs lack standing

is unpersuasive. For this reason, Plaintiffs’ purported

injury is traceable to the state eviction moratorium and

Plaintiffs have standing.

2.

Whether Plaintiffs’ Claims Against the

G over nor a re Ba r red by the Eleventh

Amendment

Defendants maintain that the doctrine of sovereign

immunity acts as a jurisdictional bar to Plaintiffs’

claims against Washington State Governor Jay Inslee.

They contend that Governor Inslee does not have a

“fairly direct” connection to enforcement of the eviction

moratorium. In contrast, Plaintiffs argue that Governor

Inslee’s enforcement connection is sufficiently direct

to overcome sovereign immunity, in part because the

Washington State Constitution expressly provides that the

governor “shall see that the laws are faithfully executed.”

Wash. Const. art. III, § 5.

22a

Appendix B

a.

Legal Standard

The Eleventh Amendment to the U.S. Constitution

acts as a jurisdictional bar to lawsuits brought by private

citizens against state governments absent the state’s

consent. U.S. Const. amend. XI; Seminole Tribe of Fla.

v. Florida, 517 U.S. 44, 73, 116 S. Ct. 1114, 134 L. Ed.

2d 252 (1996); Sofamor Danek Grp., Inc. v. Brown, 124

F.3d 1179, 1183 (9th Cir. 1997). In the seminal case Ex

Parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714

(1908), the U.S. Supreme Court permitted an action for

prospective injunctive relief against state officials who

had a proven connection to enforcing the challenged

under the legal “fiction” that a suit against the individual

was not a suit against the state. Idaho v. Coeur d’Alene

Tribe of Idaho, 521 U.S. 261, 269-270, 117 S. Ct. 2028, 138

L. Ed. 2d 438 (1997) (citing Pennhurst State Sch. and

Hosp. v. Halderman, 465 U.S. 89, 114, n.25, 104 S. Ct.

900, 79 L. Ed. 2d 67 (1984)). To overcome the protections

of sovereign immunity to sue a state official, a plaintiff

must demonstrate that the official “[has] some connection

with the enforcement of the act[.]” Ex Parte Young, 209

U.S. at 157. Under the Young doctrine, the enforcement

connection “must be fairly direct,” and a “generalized

duty to enforce state law or general supervisory powers

over the person responsible for enforcing the challenged

provision” does not suffice. Los Angeles Cnty. Bar Ass’n

v. Eu, 979 F.2d 697, 704 (9th Cir. 1992).

b. Discussion

In this case, sovereign immunity bars the present

suit against Governor Inslee. Ninth Circuit precedent

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Appendix B

makes clear that—although a state governor may be

ultimately responsible for executing and enforcing the

laws of a state—the duty of general enforcement does

not establish the “requisite enforcement connection” to

overcome sovereign immunity. Ass’n des Eleveurs de

Canards et d’Oies du Quebec v. Harris, 729 F.3d 937, 943

(9th Cir. 2013) (finding that the California Governor was

immune from suit with respect to claims for injunctive

relief because “his only connection to [the relevant statute]

[was] his general duty to enforce California law”), cert.

denied, 574 U.S. 932, 135 S. Ct. 398, 190 L. Ed. 2d 249

(2014); Nat’l Audubon Soc’y, Inc. v. Davis, 307 F.3d 835,

847 (9th Cir. 2002) (finding that the “suit is barred against

the Governor . . . as there is no showing that they have the

requisite enforcement connection”), opinion amended on

denial of reh’g, 312 F.3d 416 (9th Cir. 2002); Los Angeles

Cnty. Bar Ass’n, 979 F.2d at 704 (citing Long v. Van de

Kamp, 961 F.2d 151, 152 (9th Cir. 1992) (holding that the

“connection must be fairly direct; a generalized duty to

enforce state law or general supervisory power over the

persons responsible for enforcing the challenged provision

will not subject an official to suit”); see also Nat’l Conf.

of Pers. Managers, Inc. v. Brown, 690 F. App’x 461, 463

(9th Cir. 2017). “Were the law otherwise, the exception

would always apply[ ]” and “[g]overnors who influence

state executive branch policies (which virtually all

governors do) would always be subject to suit under Ex

Parte Young.” Tohono O’Odham Nation v. Ducey, 130

F. Supp. 3d 1301, 1311 (D. Ariz. 2015). In short, a more

direct connection to enforcement of the law is required,

and the Eleventh Amendment bars suit against Governor

Inslee. Accordingly, Governor Inslee is dismissed from

this action.

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Appendix B

Defendants do not appear to challenge whether

Attorney General Ferguson is properly named in this

suit, and the Court agrees sovereign immunity is not

a jurisdictional bar as to the Attorney General. Cf.

Planned Parenthood of Idaho, Inc. v. Wasden, 376

F.3d 908, 920 (9th Cir. 2004) (holding that the Idaho

Attorney General was properly named under Ex Parte

Young because, unless the county prosecutor objected,

the Attorney General had power to perform every act

the county attorney could perform); Bolbol v. Brown,

120 F. Supp. 3d 1010, 1018-19 (N.D. Cal. 2015) (holding

that the California Attorney General was not entitled to

Eleventh Amendment immunity because under the state

constitution the Attorney General not only has “direct

supervision over every district attorney” but also has the

duty to “prosecute any violations of the law ... [and] shall

have all the powers of a district attorney”).

3.

Whether the Court Has Jurisdiction to Enjoin

Purported Violations of the Washington

Constitution

The parties now agree that the Court lacks jurisdiction

to enjoin purported violations of the Washington

Constitution. See ECF No. 37 at 14. As a result, the Court

dismisses Plaintiffs’ Third Claim for Relief on the grounds

of state sovereign immunity and federalism, as embodied

in the Eleventh Amendment.

25a

Appendix B

B. First Cause of Action: Contracts Clause of Article

I, § 10 of the U.S. Constitution

1.

Whether the Eviction Moratorium Violates the

Contracts Clause

Of their substantive claims, Plaintiffs first argue

that Washington’s eviction moratorium violates the

Contracts Clause of Article I, § 10 of the U.S. Constitution.

Plaintiffs argue that the eviction moratorium violates the

Contracts Clause because it substantially impairs their

landlord-tenant contracts. They contend that the ability

to evict is the “cornerstone” of their contractual bargain

and the moratorium eliminates all practical remedies

for contractual violations. ECF No. 22 at 23. Plaintiffs

cite mostly pre-Blaisdell decisions, including Bronson v.

Kinzie, 42 U.S. 311, 11 L. Ed. 143 (1843), for the principle

that a contractual impairment may be substantial even

when remedies for contractual breaches are merely

delayed. ECF No. 22 at 24; see generally Home Building

& Loan Association v. Blaisdell, 290 U.S. 398, 54 S. Ct.

231, 78 L. Ed. 413 (1934). Plaintiffs further assert that the

moratorium is not a reasonable and necessary means to

address Washington’s stated interest. ECF No. 22 at 27.

Their primary contention is that, because the moratorium

protects all renters and there is no requirement that a

renter attest to loss of income or health impacts from the

COVID-19 pandemic, the moratorium is not sufficiently

tailored to Defendants’ purpose. Id. at 24-25.

In contrast, Defendants argue that the moratorium

does not impose a substantial, unforeseeable impairment

26a

Appendix B

on Plaintiffs’ rental agreements. ECF No. 30 at 4348. Specifically, Defendants claim that the eviction

moratorium does not undermine Plaintiffs’ contractual

bargain or impair Plaintiffs’ reasonable expectations,

and also that Plaintiffs may safeguard or reinstate their

contractual rights. Id. Defendants respond that the means

of the moratorium is appropriate because it was intended

to have broad public benefits, including protection of the

state’s economy and public health. ECF No. 30 at 50-51,

53. Defendants chiefly cite Blaisdell in support of the

contention that the moratorium fits the Supreme Court’s

standard for a reasonable and appropriate law, especially

during a period of emergency. See id. at 53.

a.

Legal Standard

The Contracts Clause provides that “[n]o State

shall . . . pass any . . . Law impairing the Obligation

of Contracts.” U.S. Const. art. I, § 10, cl. 1. Yet, the

Contracts Clause is not “the Draconian provision that its

words might seem to imply.” Allied Structural Steel Co.

v. Spannaus, 438 U.S. 234, 240, 98 S. Ct. 2716, 57 L. Ed.

2d 727 (1978). Modern Contracts Clause jurisprudence is

based on the “watershed decision” of Home Building &

Loan Association v. Blaisdell, 290 U.S. 398, 54 S. Ct. 231,

78 L. Ed. 413 (1934). Apartment Ass’n of Los Angeles Cty.,

Inc. v. City of Los Angeles, 10 F.4th 905, No. 20-56251, 2021

U.S. App. LEXIS 25539, 2021 WL 3745777, at *5 (9th Cir.

Aug. 25, 2021). In the case of Blaisdell , the U.S. Supreme

Court “upheld Minnesota’s statutory moratorium against

home foreclosures, in part, because the legislation was

addressed to the ‘legitimate end’ of protecting ‘a basic

27a

Appendix B

interest of society.’” Keystone Bituminous Coal Ass’n

v. DeBenedictis, 480 U.S. 470, 503, 107 S. Ct. 1232, 94

L. Ed. 2d 472 (1987). Pertinent Contract Clauses cases

consist of Blaisdell and its progeny, which conceptualize a

radically different idea of the Clause than in pre-Blaisdell

jurisprudence. Post-Blaisdell, “the Supreme Court has

construed [the Contracts Clause] prohibition narrowly

in order to ensure that local governments retain the

flexibility to exercise their police powers effectively.”

Matsuda v. Cty. & Cnty. of Honolulu, 512 F.3d 1148, 1152

(9th Cir. 2008); Allied Structural Steel Co., 438 U.S. at

240 (“[T]he [state’s] police power[ ] is an exercise of the

sovereign right of the Government to protect the lives,

health, morals, comfort and general welfare of the people,

and is paramount to any rights under contracts between

individuals.”) (quoting Manigault v. Springs, 199 U.S. 473,

480, 26 S. Ct. 127, 50 L. Ed. 274 (1905)).

To determine whether legislation violates the

Contracts Clause, federal courts deploy a “two-step

test.” Sveen v. Melin, U.S. , 138 S. Ct. 1815, 1821-22,

201 L. Ed. 2d 180 (2018). First, “[t]he threshold issue

is whether the state law has ‘operated as a substantial

impairment of a contractual relationship.’” Id. (quoting

Allied Structural Steel Co., 438 U.S. at 244). Under this

inquiry, relevant factors include “the extent to which

the law undermines the contractual bargain, interferes

with a party’s reasonable expectations, and prevents

the party from safeguarding or reinstating his rights.”

Id. at 1822. Second, if the law constitutes a substantial

impairment of a contractual relationship, the court must

turn to the “means and ends of the legislation.” Id. The

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Appendix B

court should determine whether the legislation is drawn

in an “’appropriate’ and ‘reasonable’ way to advance ‘a

significant and legitimate public purpose.’” Id. (quoting

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

459 U.S. 400, 411-412, 103 S. Ct. 697, 74 L. Ed. 2d 569

(1983)). Under this second step, courts apply a heightened

level of scrutiny when the government is a contracting

party. U.S. Trust Co. of N.Y. v. New Jersey, 431 U.S. 1,

25-26, 97 S. Ct. 1505, 52 L. Ed. 2d 92 (1977). When the

government is not party to the contract being impaired,

as is here, “courts properly defer to legislative judgment

as to the necessity and reasonableness of a particular

measure.” Energy Reserves, 459 U.S. at 413 (quotations

omitted); see also Keystone Bituminous, 480 U.S. at 505;

Apartment Ass’n of Los Angeles Cnty., 2021 U.S. App.

LEXIS 25539, 2021 WL 3745777 at *5; Lazar v. Kroncke,

862 F.3d 1186, 1199 (9th Cir. 2017).

b. Discussion

In this case, there is no dispute that Plaintiffs have

valid landlord-tenant agreements that are subject to the

Contracts Clause. Accordingly, the Court turns to the

two-step test re-articulated in Sveen.

i. Substantial Impairment

The Court finds that Washington’s eviction moratorium

does not substantially impair Plaintiffs’ lease agreements

for three reasons. First, the moratorium does not

undermine Plaintiffs’ contractual bargain with their

tenants. The moratorium delays the ability of Plaintiffs

29a

Appendix B

to exercise certain statutory remedies. Mere delay is

insufficient to materially alter the lease agreements in a

manner that violates the Contracts Clause. Blaisdell is a

strikingly similar case that is directly applicable. 290 U.S.

398, 54 S. Ct. 231, 78 L. Ed. 413 (1934). In Blaisdell, the

U.S. Supreme Court upheld a Depression-era mortgage

moratorium law extending mortgagors’ redemption period

for up to two years. Id. at 439. It reasoned that while

contractual obligations may be “impaired by a law which

renders them invalid, or releases or extinguishes them[,]”

such as a “state insolvent law” that wholly “discharge[s]

the debtor from liability” for preexisting debts, the

mortgage moratorium did not impose an impairment on

the plaintiffs’ contractual rights. Id. at 439 (emphasis

added). In that case, the U.S. Supreme Court also

distinguished the case cited by Plaintiffs, reasoning that

the Court in Bronson did not consider states’ interests in

exercising police powers to “safeguard the vital interests

of its people.” Id. at 434. Indeed, the Blaisdell Court made

clear that changing socioeconomic circumstances may

alter the boundaries of the state’s police power. Id. at 442.

In this case, the eviction moratorium does not

extinguish the contractual obligations of tenants to

landlords, but temporarily restrains enforcement through

eviction and debt collection during a period of “great

public calamity.” Id. The moratorium is only a “temporary

restraint of enforcement . . . to protect the vital interests

of the community”—that is, protecting the public from a

homelessness epidemic unseen since the Great Recession

and preventing further transmission of COVID-19. See

id. at 439. The moratorium’s plain language does not

30a

Appendix B

extinguish or release tenants’ obligations to pay past-due

rent. The moratorium delays the remedy of eviction for

failure of a tenant to pay timely rent during the period

of the health-emergency-based restriction. It is also

significant to note that Proclamation 20-19.6 expressly

provided that landlords and property managers had the

right to treat unpaid rent as enforceable debt immediately

if they “demonstrate[d] . . . to a court that the resident

was offered, and refused or failed to comply with” a

reasonable payment plan. Proc. 20-19.6, ¶ 35. Under

the active Bridge Proclamation, past-due rent may be

treated as an enforceable debt once a repayment plan has

been offered, the SB 5160 programs are implemented,

and a tenant has been offered, and rejected or failed to

respond to, an opportunity to participate in the programs.

In Yakima, the SB 5160 programs are fully operational

and Plaintiffs may treat unpaid rent or other charges as

an enforceable debt that is owing and collectible after

following these procedures. In either scenario, as a matter

of law, Plaintiffs are incorrect in their assertion that the

moratorium prohibits them “from treating unpaid rent

as an enforceable debt and bringing a breach-of-contract

action.” ECF No. 22 at 28.

Second, the eviction moratorium does not impair

reasonable expectations of Plaintiffs in their contracts.

Under this factor, courts consider “whether the industry

the complaining party has entered has been regulated in

the past.” Energy Rsrvs. Grp., Inc., 459 U.S. at 411-12.

The landlord-tenant relationship, and housing industry

generally, is heavily regulated in Washington. The

Residential Landlord-Tenant Act, Chapter 59.18 RCW,

31a

Appendix B

regulates the relationship by, inter alia, establishing a

duty to keep the premises fit for human habitation, Wash.

Rev. Code § 59.18.060; requiring notice of rent increases,

id. § 59.18.140, and termination, id. § 59.18.200; and

regulating late fees, id. § 59.18.170, tenant screenings,

id. § 59.18.257, and security deposits, id. § 59.18.260.280. Significantly, Chapter 59.12 RCW (Forcible Entry

and Forcible and Unlawful Detainer), and the Residential

Landlord-Tenant Act, both regulate when eviction of

tenants is permissible. Wash. Rev. Code §§ 59.12, 59.18.365.410. In this case, the State’s pervasive regulation in this

field has placed Plaintiffs on notice that they may face

further government intervention. That is particularly true

where, as here, the eviction moratorium regulates the

same industry topics (permissible use of unlawful detainer

proceedings, late fees, and security deposits) and shares

the same legislative intent to protect the rights of tenants

in the rental relationship. Consequently, this factor also

indicates that the eviction moratorium does not violate

the Contracts Clause.

Third, Plaintiffs may safeguard and reinstate their

contractual rights during and subsequent to the eviction

moratorium. A law altering contractual remedies without

nullifying them does not “prevent[] the party from

safeguarding or reinstating [their] rights.” Sveen, 138

S. Ct. at 1822. As delineated previously, the eviction

moratorium did not extinguish Plaintiffs’ contractual

rights. Put bluntly, the moratorium delays the use of

particular tools to enforce certain contractual obligations

for the time of the state of emergency. The eviction

moratorium does not eliminate tenants’ obligations to

32a

Appendix B

pay rent or Plaintiffs’ rights to collect past-due rent.

And contrary to Plaintiffs’ representations, Plaintiffs

may treat unpaid rent as an enforceable debt during the

moratorium after following the above-noted procedures.

Because the moratorium does not nullify contractual

remedies, the eviction moratorium does not impair

Plaintiffs’ ability to safeguard their contractual rights in

their rental agreements.

Due to the foregoing, the Court finds that the eviction

moratorium does not substantially impair Plaintiffs’

lease agreements. Even if the Court were to find that the

moratorium operated to substantially impair Plaintiffs’

contractual rights, Plaintiffs’ Contracts Clause claim fails

because the eviction moratorium advances a significant

and legitimate public purpose in an appropriate and

reasonable way. Each element is discussed in turn.

ii.

Significant and Legitimate Purpose

Public

Each of Washington’s proffered reasons for the

eviction moratorium are significant and legitimate public

objectives. On its face, Proclamation 20-19.6 states that

its purpose is to “reduce economic hardship” of those

“unable to pay rent as a result of the COVID-19 pandemic”

and “promote public health and safety by reducing the

progression of COVID-19 in Washington State.” Proc.

20-19.6, ¶¶ 13, 15. The Bridge Proclamation extends this

purpose with the goal of “reduc[ing] uncertainty” as the

state implements a long-term post-COVID-19 housing

recovery strategy. Proc. 21-09, ¶ 23.

33a

Appendix B

Here, the state’s purpose of preventing transmission

of COVID-19 is not only significant and legitimate, but

compelling. See, e.g., Roman Catholic Diocese of Brooklyn

v. Cuomo, U.S. , 141 S. Ct. 63, 67, 208 L. Ed. 2d 206 (2020)

(per curiam) (“Stemming the spread of COVID-19 is

unquestionably a compelling interest . . . .”); Workman

v. Mingo Cnty. Bd. of Educ., 419 F. App’x 348, 353 (4th

Cir. 2011) (“[T]he state’s wish to prevent the spread of

communicable diseases clearly constitutes a compelling

interest.”). The eviction moratorium also seeks to address

the economic and social fallout from the gravest public

health crisis in a century. The Governor’s Office was

particularly concerned with the impact of COVID-19,

and all its economic consequences, on housing and the

homelessness crisis. It cannot seriously be argued that

these objectives do not serve the public and that they do

not constitute significant and legitimate purposes of the

state. Consequently, the Court finds that Defendants have

articulated a significant and legitimate public purpose for

the eviction moratorium.

iii. Appropriate and Reasonable Means

The eviction moratorium is also an appropriate and

reasonable measure to address the state’s objectives.

Since Washington is not a party to the contracts under

review, the Court must “defer” to the government’s

“judgment as to the necessity and reasonableness of a

particular measure.” Energy Rsrvs. Grp., 459 U.S. at

412-13. Such “latitude ‘must be especially broad” where

“officials ‘undertake to act in areas fraught with medical

and scientific uncertainties,” such as responding to the

34a

Appendix B

COVID-19 pandemic. S. Bay United Pentecostal Church

v. Newsom, U.S. , 140 S. Ct. 1613, 1613-14, 207 L. Ed. 2d

154 (2020) (Roberts, C.J., concurring) (quoting Marshall

v. United States, 414 U.S. 417, 427, 94 S. Ct. 700, 38 L. Ed.

2d 618 (1974)). Provided that the limits of the Contracts

Clause are not exceeded, the Court should decline to

engage in second-guessing, as the “unelected federal

judiciary” lacks the “background, competence, and

expertise to assess public health.” Id. (quoting Garcia v.

San Antonio Metro. Transit Auth., 469 U.S. 528, 545, 105

S. Ct. 1005, 83 L. Ed. 2d 1016 (1985)).

On this point, Plaintiffs argue that the moratorium

is not reasonable and appropriate because it applies

“regardless of a tenant’s employment or ability to pay.”

ECF No. 22 at 18. This argument misses the forest for

the trees. Regardless of the pandemic’s impact on any

specific individual’s financial or health circumstances,

one of the moratorium’s express intentions is to reduce

person-to-person contact to mitigate transmission of

COVID-19. At least one study’s projections indicated

that mass evictions could have resulted in up to 59,008

more eviction-attributable COVID-19 cases, 5,623 more

hospitalizations, and 621 more deaths in Washington.

ECF No. 35-1 at 64-65. Further, the reasonableness of the

state’s public purpose of preventing homelessness during

the pandemic is directly supported by Blaisdell, where

the Supreme Court upheld a similar law enacted during

an “emergency” that “threaten[ed] the loss of homes.”

290 U.S. at 444-45.

35a

Appendix B

Plaintiffs also maintain that the eviction moratorium

places an unreasonable burden of its public benefit on

landlords and property managers. But virtually every

law “regulating commercial and other human affairs

. . . creates burdens for some that directly benefit others.”

Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211,

223, 106 S. Ct. 1018, 89 L. Ed. 2d 166 (1986). Simply

because the moratorium “requires one person to use his

or her assets for the benefit of another” does not raise

the eviction moratorium to a level of unconstitutionality

under the Contracts Clause. Id. It does not serve special

interests but seeks to protect the basic interest of society

in preventing mass evictions and housing instability, id.,

and preventing the further spread of COVID-19.

For all these reasons, and in accordance with the

numerous other district courts that have considered

constitutional challenges to state eviction moratoria,

the Court finds that Washington’s moratorium is an

appropriate and reasonable response to the state’s

significant and legitimate public purpose of preventing

spread of COVID-19 and exacerbation of the homelessness

crisis. See, e.g., HAPCO v. City of Philadephia, 482 F.

Supp. 3d 337, 355 (E.D. Pa. 2020) (finding that “as in

Blaisdell, where temporary measures enacted in response

to emergency conditions to allow people to remain in their

homes under certain conditions was upheld in response

to a Contracts Clause challenge, [plaintiff’s] Contracts

Clause challenge to the City’s temporary legislation,

enacted in response the COVID-19 pandemic and designed

to allow residents to remain in their homes, is unlikely

to succeed on the merits”); El Papel LLC v. Inslee, No.

36a

Appendix B

2:20-CV-01323-RAJ-JRC, 2020 U.S. Dist. LEXIS 246971,

2020 WL 8024348, at *7 (W.D. Wash. Dec. 2, 2020),

report and recommendation adopted, No. 2:20-CV01323-RAJ-JRC, 2021 U.S. Dist. LEXIS 4092, 2021 WL

71678 (W.D. Wash. Jan. 8, 2021) (“Blaisdell supports the

reasonableness of [Washington’s Moratorium].”). The

Court declines to second-guess the expertise of the state

in formulating an appropriate response to the present

public health emergency, which is fraught with medical

and scientific uncertainties. Accordingly, Defendants are

entitled to judgment as a matter of law and the Court

grants summary judgment in favor of Defendants on the

Contracts Clause claim.

C. Second Cause of Action: Takings Clause of the

Fifth Amendment to the U.S. Constitution

Plaintiffs’ next cause of action contends that the

eviction moratorium constitutes a per se physical taking

of their property rights under the Fifth Amendment to

the U.S. Constitution. Plaintiffs do not request monetary

damages in this action. Instead, they request the Court

grant declaratory relief that a “taking” has occurred,

so that they may begin the process to acquire “just

compensation.” Their core Takings Clause claim is that

the eviction moratorium leads to a physical invasion of

private property and thereby “takes” Plaintiffs’ right

to exclude. ECF No. 22 at 6-11. They cite Cedar Point

Nursery v. Hassid, U.S. , 141 S. Ct. 2063, 210 L. Ed. 2d

369 (2021) to support their assertion that the moratorium

constitutes a physical taking. ECF No. 48 at 2-9. Plaintiffs

also argue that the eviction moratorium amounts to a per

37a

Appendix B

se taking because it appropriates their property rights in

their rental contracts and security deposits. Id. at 11-12.

Defendants argue that the eviction moratorium is

not a per se taking because the state has not physically

invaded Plaintiffs’ properties or otherwise appropriated

their property rights. They contend that Cedar Point

Nursery is factually and legally distinguishable and the

case actually reaffirms the U.S. Supreme Court’s prior

holdings that regulations restricting the use of property

without a physical invasion of land, particularly when the

use is premised on the owner’s voluntary invitation to

an occupant, are not per se takings. ECF No. 56 at 2-5.

Defendants also claim that the U.S. Supreme Court’s

per se takings jurisprudence does not apply to property

interests in contracts, and nonetheless, the eviction

moratorium appropriated neither Plaintiffs’ contractual

rights nor security deposits. ECF No. 30 at 36-38.

1.

Whether Declaratory Relief is Available to

Plaintiffs

a.

Legal Standard

The Takings Clause prohibits a state from taking

private property for public use “without just compensation.”

U.S. Const. amend. V. Accordingly, “[e]quitable relief is not

available to enjoin an alleged taking of private property

for public use . . . when a suit for compensation can be

brought against the sovereign subsequent to the taking.”

Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016, 104

S. Ct. 2862, 81 L. Ed. 2d 815 (1984) (citing Larson v.

38a

Appendix B

Domestic & Foreign Commerce Corp., 337 U.S. 682, 69

S. Ct. 1457, 93 L. Ed. 1628 (1949)); accord Stop the Beach

Renourishment, Inc. v. Fla. Dep’t of Env’t Prot., 560

U.S. 702, 740, 130 S. Ct. 2592, 177 L. Ed. 2d 184 (2010)

(Kennedy, J., concurring). The U.S. Supreme Court

reasoned in Knick v. Township of Scott, Pa., 588 U.S. ,

139 S. Ct. 2162, 204 L. Ed. 2d 558 (2019) that, “[t]oday,

because the federal and nearly all state governments

provide just compensation remedies to property owners

who have suffered a taking, equitable relief is generally

unavailable. As long as an adequate provision for obtaining

just compensation exists, there is no basis to enjoin the

government’s action effecting taking.” Id. at 2176-77. The

Court concluded that “a government violates the Takings

Clause when it takes property without compensation, and

that a property owner may bring a Fifth Amendment

claim under [42 U.S.C.] § 1983 at that time.” Id. at 2177.

b. Discussion

The Court first considers whether the declaratory

relief sought is available to Plaintiffs. In this case,

Plaintiffs do not seek proper relief for a Fifth Amendment

taking. Plaintiffs seek declaratory relief that a taking has

occurred, not monetary damages. As other federal district

courts have found, such relief is inappropriate because it

would be the functional equivalent of an injunction against

enforcement of the moratorium. See, e.g., Baptiste v.

Kennealy, 490 F. Supp. 3d 353, 391 (D. Mass. 2020); Cty.

of Butler v. Wolf, No. 2:20-cv-677, 2020 U.S. Dist. LEXIS

93484, 2020 WL 2769105, *4 (W.D. Pa. May 28, 2020);

HAPCO, 482 F. Supp. 3d at 358, 358 n.112. The declaratory

39a

Appendix B

judgment sought by Plaintiffs is indisputably a type of

equitable remedy. Apache Survival Coalition v. United

States, 21 F.3d 895, 905 n.12 (9th Cir. 1994). Accordingly,

the relief sought by Plaintiffs is foreclosed by the Supreme

Court’s decision in Knick, 139 S. Ct. at 2177. The remedy

for a taking under the Fifth Amendment is damages, not

equitable relief. 3 For this reason, the Court is unable to

grant the relief sought by Plaintiffs.

2.

Whether the Eviction Moratorium Constitutes

a Per Se Physical Taking

a.

Legal Standard

The Fifth Amendment’s Takings Clause applies to

the states through the Fourteenth Amendment. Murr v.

Wisconsin, U.S. , 137 S. Ct. 1933, 1942, 198 L. Ed. 2d 497

(2017); Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 536,

125 S. Ct. 2074, 161 L. Ed. 2d 876 (2005). As previously

stated, the Fifth Amendment provides that private

property shall not “be taken for public use, without just

compensation.” U.S. Const. amend. V. Under the Takings

Clause, there are traditionally two categories of takings,

(1) per se physical takings, and (2) regulatory takings. To

summarize:

3. It is worth noting that the Washington State Constitution

provides an avenue for obtaining compensation via damages for the

alleged taking of property. Wash. Const. art. I, § 16. Plaintiffs have

not attempted to acquire just compensation for the purported taking

through available state procedures.

40a

Appendix B

Our jurisprudence involving condemnations and

physical takings is as old as the Republic and,

for the most part, involves the straightforward

application of per se rules. Our regulatory

takings jurisprudence, in contrast, is of

more recent vintage and is characterized by

‘essentially ad hoc, factual inquiries,’ designed

to allow ‘careful examination and weighing of

all the relevant circumstances.’”

Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning

Agency, 535 U.S. 302, 321, 122 S. Ct. 1465, 152 L. Ed. 2d

517 (2002) (internal citations omitted). “The first category

of cases requires courts to apply a clear rule; the second

necessarily entails complex factual assessments of the

purposes and economic effects of government actions.”

Yee v. Escondido, 503 U.S. 519, 523, 112 S. Ct. 1522, 118 L.

Ed. 2d 153 (1992). “This longstanding distinction between

acquisitions of property for public use, on the one hand,

and regulations prohibiting private uses, on the other,

makes it inappropriate to treat cases involving physical

takings as controlling precedents for the evaluation of a

claim that there has been a ‘regulatory taking,’ and vice

versa.” Tahoe-Sierra Pres. Council, Inc., 535 U.S. at 322.

Under the first category of per se physical takings,

“[w]hen the government physically takes possession

of an interest in property for some public purpose,

it has a categorical duty to compensate the former

owner, regardless of whether the interest that is taken

constitutes an entire parcel or merely a part thereof.

Thus, compensation is mandated when a leasehold is taken

41a

Appendix B

and the government occupies the property for its own

purposes, even though that use is temporary.” Id. The

U.S. Supreme Court acknowledged that the same was true

when the government physically appropriated part of a

rooftop to provide cable TV access for apartment tenants

in Loretto v. Teleprompter Manhattan CATV Corp., 458

U.S. 419, 102 S. Ct. 3164, 73 L. Ed. 2d 868 (1982), and

where the government used its planes in private airspace

to approach a government airport in United States v.

Causby, 328 U.S. 256, 66 S. Ct. 1062, 90 L. Ed. 1206, 106

Ct. Cl. 854 (1946). Tahoe-Sierra Pres. Council, Inc., 535

U.S. at 322.

Under the second category of regulatory takings,

which contrasts with the categorical per se takings

rule, courts consider complex factual assessments of the

purposes and economic effects of governmental actions.

Id. at 323 (quoting Yee, 503 U.S. at 523). The seminal

regulatory takings case is Penn Central Transp. Co. v.

City of New York, 439 U.S. 883, 99 S. Ct. 226, 58 L. Ed. 2d

198 (1978). Plaintiffs do not challenge the moratorium as

a regulatory taking and, for this reason, the Court does

not extrapolate the Penn Central standard here. Accord

Yee, 503 U.S. at 536-37.

In Loretto, a per se takings case, the U.S. Supreme

Court considered a challenge to a New York statute

requiring that landlords permit a cable television company

to install television facilities on their properties, and which

prohibited demands for payment from the company in

excess of an amount determined reasonable by the state

commission. Loretto, 458 U.S. at 423. The petitioner

42a

Appendix B

brought a class action for damages, alleging that the

statute constituted a taking. Id. The question for the

U.S. Supreme Court was “whether an otherwise valid

regulation so frustrates property rights that compensation

must be paid.” Id. at 425-26 (citing Penn. Central Transp.

Co., 439 U.S. at 127-28). The U.S. Supreme Court’s decision

hinged firmly on its interpretation of the third Penn

Central factor, which considers the “character” of the

governmental action. Id. at 429-430. The Court concluded

that “a permanent physical occupation authorized by

government is a taking without regard to the public

interests that it may serve,” id. at 426, and that there

was invariably a taking because the statute mandated the

permanent physical occupation of real property, id. at 427.

The Court’s reasoning relied heavily on the distinction

between a permanent occupation and temporary physical

invasion. Id. at 434 (citing PruneYard Shopping Center

v. Robins, 447 U.S. 74, 100 S. Ct. 2035, 64 L. Ed. 2d 741

(1980)). While a temporary physical invasion is subject

to a balancing process under the three Penn Central

factors, “when the ‘character of the governmental

action[ ]’ is a permanent physical occupation of property,

our cases uniformly have found a taking to the extent

of the occupation, without regard to whether the action

achieves an important public benefit or has only minimal

economic impact on the owner.” Id. at 434-35 (internal

citation omitted). Thus, the Court held in Loretto that

“permanent physical invasions” are not subject to

balancing under the remaining Penn Central factors and

are instead per se takings.

43a

Appendix B

Subsequent to Loretto, the U.S. Supreme Court

decided Yee v. City of Escondido, California, 503 U.S. 519,

112 S. Ct. 1522, 118 L. Ed. 2d 153 (1992). The petitioners

in Yee were mobile home park owners in Escondido,

California, who rented pads of land to mobile homeowners.

Id. at 523. California’s Mobilehome Residency Law limited

the reasons that a park owner could terminate a mobile

homeowner’s tenancy to (1) nonpayment of rent; and (2) the

park owner’s desire to change the use of his or her land.

Id. at 524. The City also had a rental control ordinance

that prohibited rent increases absent the City Council’s

approval. Id. at 524-25. Petitioners argued that the local

rent ordinance, in conjunction with the Mobilehome

Residency Law, amounted to a per se physical taking.

Id. at 523-24. The U.S. Supreme 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. The Court rejected

petitioners’ argument that the rental control ordinance

authorized a physical taking because the law, in conjunction

with the state law’s restrictions, granted a homeowner a

right to occupy the pad indefinitely at a submarket rent.

In rejecting this argument, the Court reasoned that

a physical taking occurs “only when [the government]

requires the landowner to submit to physical occupation of

his land.” Id. at 527 (emphasis in original). The petitioners

were not compelled by the city or state to continue renting

their properties. Id. The Court determined that, because

the laws merely regulated petitioners’ use of their land by

regulating the relationship between landlord and tenant,

they could not be squared with the Court’s physical

takings cases. Id. at 527-28. The U.S. Supreme Court

44a

Appendix B

concluded: “This Court has consistently affirmed that

States have broad power to regulate housing conditions in

general and the landlord-tenant relationship in particular

without paying compensation for all economic injuries that

such regulation entails.” Id. at 528-29 (quoting Loretto,

458 U.S. at 440); Florida Power Corp., 480 U.S. at 252

(“[S]tatutes regulating the economic relations of landlords

and tenants are not per se takings.”).

The U.S. Supreme Court issued a more recent decision

concerning the Takings Clause in Cedar Point Nursery

v. Hassid, U.S. , 141 S. Ct. 2063, 210 L. Ed. 2d 369 (2021).

In Cedar Point Nursery, the Court held that a California

access regulation that gave outside labor organizers a right

to “take access” to agricultural employers’ property was

a per se physical taking because it appropriated property

owners’ “right to exclude,” both for the government itself

and for third parties. Id. at 2072 (quoting Cal. Code. Regs.,

tit. 8, § 20900(e)(1)(C) (2020)). The regulation required

agricultural employers to permit union organizers on their

property for three hours a day, 120 days per year, for the

purpose of soliciting employees to join or form a union.

Id. at 2069. The Court reasoned that the occupation was a

physical taking because it impacted the right to exclude,

which is the “sine qua non” of property. Id. at 2072-73. The

Court rejected the notion that the failure of the regulation

to invade the property right “around the clock” made the

taking any less a taking under the Fifth Amendment. Id.

at 2075. Through Cedar Point Nursery, it appears the

Court implicitly overruled its previous rationale under per

se jurisprudence that distinguished between “permanent

physical occupations” and “temporary physical invasions.”

45a

Appendix B

See Loretto, 458 U.S. at 434 (citing PruneYard Shopping

Center, 447 U.S. at 74).

b. Discussion

Even if the Court were to find that declaratory

relief was available to Plaintiffs, the Court finds that

Washington’s eviction moratorium does not constitute

a per se physical taking under the Takings Clause.

With respect to Plaintiffs’ assertion regarding physical

occupation, the moratorium does not constitute a per se

taking because the moratorium did not require Plaintiffs

to submit to physical occupation or invasion of their

land and did not appropriate Plaintiffs’ right to exclude.

The U.S. Supreme Court has made clear that “statutes

regulating the economic relations of landlords and tenants

are not per se takings.” Florida Power Corp., 480 U.S.

at 252. No physical invasion has occurred beyond that

agreed to by Plaintiffs in renting their properties as

residential homes, which is naturally subject to regulation

by the state. Like traditional regulatory takings cases,

the moratorium “transfers wealth from the landlord to

the tenants by reducing the landlords’ income and the

tenants’ monthly payments.” Yee, 503 U.S. at 529. But,

as the Supreme Court stated in Yee, the existence of the

wealth transfer “in itself does not convert regulation into

physical invasion.” Id. at 530. To find that the eviction

moratorium is a per se physical taking would require the

Court to disregard the U.S. Supreme Court’s holdings

and rationale in both Loretto and Yee; it would essentially

require the Court to eliminate the line between the U.S.

Supreme Court’s per se takings and regulatory takings

46a

Appendix B

jurisprudence. Such activism is not the occupation of this

Court.

Plaintiffs’ attempt to distinguish Yee from this case

fails, as the plaintiffs in Yee similarly argued that the

ordinance required them to lease to tenants beyond

their original lease terms. 503 U.S. at 526-27 (“Because

under the California Mobilehome Residency Law the

park owner cannot evict a mobile home owner or easily

convert the property to other uses, the argument goes,

the mobile home owner is effectively a perpetual tenant

of the park. . . .”). In this case, just as in Yee, Plaintiffs

voluntarily invited tenants to occupy their properties as

residential homes. The state has not required any physical

invasion and their tenants were “not forced upon them by

the government.” Id. at 528. Plaintiffs’ right to exclude

has not been taken because the moratorium compelled

no physical invasion or occupation that Plaintiffs would

have forfeited in the first place. See id. at 532-33. Instead,

the eviction moratorium regulates the landlord-tenant

relationship once it is already established.

Cedar Point Nursery also does not disturb the Court’s

analysis. The California access regulation challenged in

Cedar Point Nursery is distinguishable from the eviction

moratorium in this case. Unlike the physical appropriation

of the right to exclude in Cedar Point Nursery, the

moratorium regulates the landlords “use of their land by

regulating the relationship between landlord and tenant.”

Yee, 503 U.S. at 528. Based on the undisturbed precedent

of Yee, limitations on how a landlord may treat tenants—

which they have voluntarily invited onto their properties

47a

Appendix B

by renting to them—and enforce their contractual rights

(for a temporary period) are readily distinguishable from

regulations granting a separate right to invade property

closed to the public or most individuals. Id. at 527-28, 531.

Second, central to the U.S. Supreme Court’s decision in

Yee and as already noted, Plaintiffs voluntarily invited

tenants onto their properties. Id. at 531 (“Because they

voluntarily open their property to occupation by others,

petitioners cannot assert a per se right to compensation

based on their inability to exclude particular individuals.),

527 (“Petitioners voluntarily rented their land to mobile

home owners.”), 528 (“Petitioners’ tenants were invited by

petitioners, not forced upon them by the government.”).

Plaintiffs’ tenants were invited by themselves, not forced

upon them by the government. Id. at 528. Cedar Point

Nursery does not overrule Yee or undermine the legal

underpinnings of Yee. Indeed, in Cedar Point Nursery,

the Court cited Yee for general takings principles, and

Yee’s holding is still binding law on this Court.

While Cedar Point Nursery announced that a noncontinuous, intermittent easement created by California’s

access regulation affected a per se physical taking, it did

not undermine or disturb the long-standing principle

that “[t]he government effects a physical taking only

where it requires the landowner to submit to the physical

occupation of his land.” Yee, 503 U.S. at 527. Because the

moratorium does not commit a physical appropriation

of Plaintiffs’ land beyond that consented by Plaintiffs in

renting their units as residential properties—an industry

heavily regulated by the State of Washington—the

eviction moratorium does not constitute a per se taking

48a

Appendix B

under the Fifth Amendment. See S. Cal. Rental Housing

Ass’n v. Cty. of San Diego, No. 3:21-CV-912-L-DEB, 2021

U.S. Dist. LEXIS 139970, 2021 WL 3171919, at *8 (S.D.

Cal. July 26, 2021) (distinguishing Cedar Point Nursery

and holding that plaintiff failed to show a likelihood

of success on the merits on its Takings Clause claim

challenging California’s eviction moratorium).

Plaintiffs’ argument that the eviction moratorium

effects a taking in their rental contracts also fails.

Plaintiffs cite regulatory takings case Cienega Gardens v.

United States, (Fed. Cir. 2003) for their contention that the

moratorium’s impact on their contracts constitutes a per

se taking. Such is an inapplicable framework for Plaintiffs’

physical takings claim, as it is inappropriate for this Court

to “treat cases involving physical takings as controlling

precedents for the evaluation of a claim that there has

been a ‘regulatory taking,’ and vice versa.” Tahoe-Sierra

Pres. Council, Inc., 535 U.S. at 322. Plaintiffs also cite

eminent domain case United States v. Petty Motor

Company, 327 U.S. 372, 66 S. Ct. 596, 90 L. Ed. 729 (1946).

Petty Motor Company is unpersuasive because it is not

factually analogous and involves physical occupation.

In that case, the United States physically appropriated

a property owner and tenant’s leaseholds, requiring

that the defendants submit their real property to the

government’s immediate possession. Id. at 374-75. Here,

the eviction moratorium does not eliminate or relinquish a

contractual right of Plaintiffs; indeed, the moratorium did

not diminish a single tenant’s debt obligation to Plaintiffs

by even a penny. Plaintiffs’ arguments on this point are

not supported by law and are of no avail.

49a

Appendix B

For a similar reason, the eviction moratorium does

not take Plaintiffs’ property interests in security deposits.

Plaintiffs claim that by limiting available uses of the

security deposit during the period of emergency to prevent

deductions for past-due rent, Washington has committed

a per se taking of its property interest in their tenants’

security deposits. See ECF No. 22 at 12 (also arguing that

the purpose of a security deposit is to reimburse landlords

for unpaid rent at end of tenancy). The cases cited by

Plaintiffs on this point concern actual confiscation of

property by the government and are inapposite. See, e.g.,

Brown v. Legal Found. of Wash., 538 U.S. 216, 240, 123

S. Ct. 1406, 155 L. Ed. 2d 376 (2003) (holding that interest

on interpleaded funds exacted by the government could

be a per se taking); Webb’s Fabulous Pharmacies, Inc. v.

Beckwith, 449 U.S. 155, 164-65, 101 S. Ct. 446, 66 L. Ed.

2d 358 (1980) (holding that confiscation of interest on client

funds deposited into lawyers’ trust accounts was a per se

taking). As previously stated, the eviction moratorium

does not extinguish Plaintiffs’ property interest in

collecting unpaid rent whatsoever. Plaintiffs also remain

able to deduct charges from security deposits for other

tenant violations of the Residential Landlord-Tenant

Act, subject to state’s accounting requirements. Wash.

Rev. Code § 59.18.280. This contention is particularly

unpersuasive because Plaintiffs can recover any amount

they would otherwise deduct from a tenant’s security

deposit for unpaid rent by pursuing debt enforcement in

accordance with the terms of the Bridge Proclamation and

SB 5160. Washington is permitted to modify permissible

uses of security deposits under its regulatory scheme, as

it has done here, and it does not amount to a per se taking

under the Fifth Amendment.

50a

Appendix B

For the foregoing reasons, Plaintiffs’ Fifth Amendment

claim fails as a matter of law. The Court grants summary

judgment in favor of Defendants.

D. Fourth Cause of Action: Due Process Clause of the

Fourteenth Amendment to the U.S. Constitution

Plaintiffs’ final claim asserts two distinct arguments

under the Due Process Clause of the Fourteenth

Amendment to the U.S. Constitution. Plaintiffs contend

that the eviction moratorium violates the Due Process

Clause because it is (1) unconstitutionally vague; and (2)

“unduly oppressive” and thereby violative of substantive

due process. ECF No. 22 at 32.

First, Plaintiffs argue that the eviction moratorium is

impermissibly vague because it does not provide guidance

as to how a landlord or property manager may construct

a “reasonable payment plan” that is based on a tenant’s

individual financial, health, or other circumstances.

Plaintiffs Jay Glenn and Enrique Jevons submitted

declarations indicating that they have managed to create

repayment plans with several tenants. ECF No. 37-1 at

3-4; ECF No. 37-2 at 2-3. Plaintiff Jevons stated that,

previously, he had not attempted to even inquire about

individual tenants’ circumstances because it seemed

“devious” on his part. ECF No. 37-2 at 2. The core of

Plaintiffs’ vagueness grievance is that they experience

difficulty ascertaining individual tenants’ financial or

health circumstances, in part because tenants are not

required to communicate with them. Id. at 2-3.

51a

Appendix B

Defendants assert that the void for vagueness

doctrine does not apply because due process only prohibits

impermissibly vague laws with civil and criminal penalties.

See ECF No. 30 at 59. Nonetheless, they further argue

that the eviction moratorium’s repayment plan provision

provides constitutionally permissible “flexibility and

reasonable breadth” to courts, and that its terms provide

“fair notice” of what is expected of Plaintiffs. Id. at 60

(citations omitted).

Second, Plaintiffs assert that that the eviction

moratorium is unduly oppressive of “Plaintiffs’ right

to determine the conditions upon which a person may

continue to occupy the owner’s property.” ECF No. 22 at

34-35. They contend that they are “unjustifiably prevented

from being able to rightfully use their properties and

mitigate damages where tenants fail to pay rent.” Id. at 37.

Defendants respond that Plaintiffs are barred from

repackaging their Takings Clause and Contracts Clause

claims into a substantive Due Process Clause claim

because the former provide explicit textual sources of

constitutional protection of the asserted rights. ECF No.

30 at 60-61. In addition, Defendants claim that Plaintiffs’

substantive due process claim should not be analyzed

under a heightened standard of scrutiny, as the challenge

is based on Plaintiffs’ economic interests. See ECF No.

30 at 57. Under the appropriate standard, they argue, the

moratorium is not arbitrary or irrational for the same

reasons it furthers a significant and legitimate public

purpose. Id. at 58.

52a

Appendix B

1.

W het her t he E v ic tion Mor at or iu m i s

Unconstitutionally Vague

a.

Legal Standard

The Due Process Clause of the Fourteenth Amendment

provides that “[n]o State shall . . . deprive any person of

life, liberty, or property, without due process of law[.]”

U.S. Const. amend XIV. “’It is a basic principle of due

process that an enactment is void for vagueness if its

prohibitions are not clearly defined.’” City of Mesquite

v. Aladdin’s Castle, Inc., 455 U.S. 283, 289-90, 102 S. Ct.

1070, 71 L. Ed. 2d 152 (1982) (quoting Grayned v. City of

Rockford, 408 U.S. 104, 108, 92 S. Ct. 2294, 33 L. Ed. 2d

222 (1972) (emphasis added)). For example, a conviction

fails to comport with due process when the statute under

which it is obtained “fails to provide a person of ordinary

intelligence fair notice of what is prohibited, or is so

standardless that it authorizes or encourages seriously

discriminatory enforcement.” United States v. Williams,

553 U.S. 285, 304, 128 S. Ct. 1830, 170 L. Ed. 2d 650 (2008)

(citing Hill v. Colorado, 530 U.S. 703, 732, 120 S. Ct.

2480, 147 L. Ed. 2d 597 (2000)) (emphasis added). Where

the law “implicates First Amendment rights, . . . a ‘more

demanding’ standard of scrutiny applies.” Hunt v. City

of Los Angeles, 638 F.3d 703, 712 (9th Cir. 2011) (quoting

Grayned, 408 U.S. at 108). But “perfect clarity and precise

guidance have never been required even of regulations

that restrict expressive activity.” Id. (quoting Ward v.

Rock Against Racism, 491 U.S. 781, 794, 109 S. Ct. 2746,

105 L. Ed. 2d 661 (1989)).

53a

Appendix B

A statute may be challenged as unconstitutionally

vague on its face or as applied to a particular party. See

United States v. Kilbride, 584 F.3d 1240, 1256-59 (9th

Cir. 2009). “Outside the First Amendment context, a

plaintiff alleging facial vagueness must show that the

enactment is impermissibly vague in all its applications.”

Humanitarian Law Project v. U.S. Treasury Dep’t, 578

F.3d 1133, 1146 (9th Cir. 2009); see also United States

v. Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 95 L. Ed.

2d 697 (1987) (holding that a plaintiff mounting a facial

challenge must establish that “no set of circumstances

exists under [ ] the Act [that] would be valid”). Since a

plaintiff mounting a facial attack to a statute must show

that the law is impermissible in all its applications, a

plaintiff must first show that the law is unconstitutionally

vague as applied to them. Castro v. Terhune, 712 F.3d

1304, 1311 (9th Cir. 2013).

b. Discussion

Under the Bridge Proclamation, for rent owed that

accrued on or after February 29, 2020 through September

30, 2021, a landlord is prohibited from treating unpaid

rent as an enforceable debt if the landlord “has made no

attempt to establish a reasonable repayment plan with

the tenant per E2SSB 5160, or if they cannot agree on

a plan and no local eviction resolution pilot program per

E2SSB 5160 exists.” Proc. 21-09, ¶ 42. Further, a landlord

is required to offer a tenant a “reasonable repayment plan”

for rent accrued between August 1, 2021 and September

30, 2021 prior to enforcing any eviction notice pursuant

to the order and Section 4 of SB 5160. Id. at ¶ 37. The

54a

Appendix B

Bridge Proclamation states that a “reasonable repayment

plan” has the same meaning as “reasonable schedule for

repayment” as defined under Section 4 of SB 5160. Id. at

43. More specifically, it refers to a “repayment plan or

schedule for unpaid rent that does not exceed monthly

payments equal to one-third of the monthly rental charges

during the period of accrued debt.” Id.

Under the previously effective Proclamation 2019.6, the eviction moratorium applied for all unpaid rent

accruing on or after February 29, 2020. Proc. 20-19.6, ¶ 35.

A landlord or property manager could not treat any unpaid

rent as an enforceable debt if it accrued after this point as

a result of the COVID-19 pandemic. Id. That prohibition

was caveated with the following provision:

This prohibition does not apply to a landlord,

property owner, or property manager who

demonstrates by a preponderance of the

evidence to a court that the resident was

offered, and refused or failed to comply with,

a re-payment plan that was reasonable based

on the individual financial, health, and other

circumstances of that resident; failure to

provide a reasonable repayment plan shall be

a defense to any lawsuit or other attempts to

collect.

Id. (emphasis added). At the time, the Washington State

Attorney General’s Office prepared assistive materials,

including an unpaid rent repayment plan worksheet, to

assist landlords and property managers in communicating

with tenants to establish such repayment plans.

55a

Appendix B

In this case, the Court finds the eviction moratorium

is not impermissibly vague and does not violate the void

for vagueness doctrine. Plaintiffs’ due process claim

fails outright because the contested provision is not a

prohibition and does not require them to do anything.

See Grayned, 408 U.S. at 108 (“It is a basic principle of

due process that an enactment is void for vagueness if its

prohibitions are not clearly defined.”) (emphasis added).

The moratorium’s actual prohibition is indisputably clear:

landlords and property managers may not treat unpaid

rent stemming from the COVID-19 pandemic as an

enforceable debt during the state of emergency. Plaintiffs’

complaint concerns the exception to the prohibition, which

the state constructed to permit enforcement proceedings

in narrow circumstances: that is, where a landlord and

tenant have established a repayment plan that was

“reasonable based on the individual financial, health,

and other circumstances of that resident.” Proc. 20-19.6,

¶ 35; see also Proc. 21-09, ¶¶ 42-45. This provision, which

permits rather than prohibits a particular remedy, is not

properly challenged under the vagueness doctrine.

Fur ther, even if this exception constituted a

“prohibition” and fell within the scope of the vagueness

doctrine, the moratorium is not vague as applied to

Plaintiffs. Plaintiffs have failed to demonstrate that the

eviction moratorium in either its previous or current form

is impermissibly vague as applied to them.4 Plaintiffs’

vagueness claim is directly undermined by the fact that

4. Plaintiffs do not contend that their First Amendment rights

are implicated, and therefore heightened scrutiny does not apply.

56a

Appendix B

at least two Plaintiffs have managed to create repayment

plans with tenants. During implementation of the former

moratoria, which provides slightly less substantive

guidance on establishing repayment plans, Plaintiff Jay

Glenn attested that, for example, one tenant owed $3,000

in past-due rent and offered to pay $120 per month after

moveout, which he accepted as reasonable. And under

the operative Bridge Proclamation, such a plan is plainly

reasonable if the schedule does not “exceed monthly

payments equal to one-third of the monthly rental charges

during the period of accrued debt.” Proc. 21-09, ¶ 43.

Provided that a devised schedule does not exceed this

threshold, landlord and property managers may seek

reimbursement if a tenant defaults under the repayment

plan. Because of this, the Court cannot find that the

repayment plan provision does not provide a person of

ordinary intelligence fair notice of what is permitted (or

prohibited) or that it encourages seriously discriminatory

enforcement. See Williams, 553 U.S. at 304. Plaintiffs have

failed to demonstrate that there is no set of circumstances

where the law as applied would be valid, and their facial

attack is unsuccessful. See Salerno, 481 U.S. at 745;

Castro, 712 F.3d at 1311. Accordingly, Plaintiffs’ claim

that the eviction moratorium is unconstitutionally vague

fails as a matter of law, and summary judgment on this

claim is granted to Defendants.

57a

Appendix B

2.

Whether the Eviction Moratorium Violates

Plaintiffs’ Substantive Due Process Rights

a.

Legal Standard

The right to use property as one wishes is not a

fundamental right under substantive due process, as it

is economic in nature. Slidewaters LLC v. Washington

State Dep’t of Lab. & Indus., 4 F.4th 747, 758 (9th Cir.

2021); Bowers v. Whitman, 671 F.3d 905, 915-17 (9th Cir.

2012). “The proper test for judging the constitutionality

of statutes regulating economic activity . . . is whether the

legislation bears a rational relationship to a legitimate

state interest.” Jackson Water Works, Inc. v. Pub. Util.

Comm’n of Cal., 793 F.2d 1090, 1093-94 (9th Cir. 1986).

“Legislative acts that do not impinge on fundamental rights

or employ suspect classifications are presumed valid, and

this presumption is overcome only by a ‘clear showing of

arbitrariness and irrationality.’” Slidewaters LLC, F.4th

at 758 (quoting Kawaoka v. City of Arroyo Grande, 17

F.3d 1227, 1234 (9th Cir. 1994)). The U.S. Supreme Court

has “long eschewed” a heightened standard of scrutiny

when addressing substantive due process challenges by

government regulation. Lingle, 544 U.S. at 542; see also

Ferguson v. Skrupa, 372 U.S. 726, 730, 83 S. Ct. 1028, 10

L. Ed. 2d 93 (1963) (“We have returned to the original

constitutional proposition [pre-Lochner] that courts do

not substitute their social and economic beliefs for the

judgment of legislative bodies, who are elected to pass

laws.”). Instead, federal courts must defer “to legislative

judgments about the need for, and likely effectiveness of,

regulatory actions.” Lingle, 544 U.S. at 545.

58a

Appendix B

Accordingly, to determine whether the eviction

moratorium violates Plaintiffs’ substantive due process

rights, the Court must first determine whether the

law could advance any legitimate government purpose.

Kawaoka v. City of Arroyo Grande, 17 F.3d 1227, 1234 (9th

Cir. 1994). Second, the Court must determine whether the

law is arbitrary and irrational. See Lingle, 544 U.S. at 542;

Slidewaters LLC, 4 F.4th at 758. This is akin to a rational

basis standard of review, see Exxon Corp. v. Governor of

Md., 437 U.S. 117, 124-25, 98 S. Ct. 2207, 57 L. Ed. 2d 91

(1978), and is a “less searching” standard than that utilized

in a constitutional challenge under the Contracts Clause,

Pension Ben. Guar. Corp. v. R.A. Gray & Co., 467 U.S.

717, 733, 104 S. Ct. 2709, 81 L. Ed. 2d 601 (1984).

Furthermore, the U.S. Supreme Court has made

clear that a substantive due process claim must give way

to a claim based on identical facts that is derived from

“an explicit textual source of constitutional protection.”

Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865, 104

L. Ed. 2d 443 (1989); Albright v. Oliver, 510 U.S. 266, 266,

273, 114 S. Ct. 807, 127 L. Ed. 2d 114 (1994) (four-Justice

plurality), id. at 281 (Kennedy, J., concurring); Stop the

Beach Renourishment, Inc., 560 U.S. at 721 (Kennedy,

J., concurring).

b. Discussion

In this case, the Court finds that Plaintiffs’ Contracts

Clause claim supersedes their substantive Due Process

Clause claim. Plaintiffs’ substantive due process claim

is identical to their cause of action under the Contracts

59a

Appendix B

Clause, which the Court has already adjudicated. The

Contracts Clause provides “an explicit textual source

of constitutional protection” and Plaintiffs may not

repackage their identical argument into an independent

due process claim. See Graham, 490 U.S. at 395.

Further, Plaintiffs’ property-based substantive due

process claim employs a lower standard of scrutiny than

that employed under their Contracts Clause claim. The

Court already determined that, under Contracts Clause

analysis, the eviction moratorium is an appropriate and

reasonable fit to a significant and legitimate purpose of

the state. The moratorium is not unduly oppressive to

Plaintiffs’ due process rights or arbitrary and irrational for

the same reasons it is an “appropriate” and “reasonable”

regulation under the Contracts Clause. Accord Blaisdell,

290 U.S. at 448. As a result, the Court grants summary

judgment to Defendants on Plaintiffs’ substantive due

process claim.

V. Conclusion

For the foregoing reasons, this Court holds that the

Washington’s eviction moratorium does not violate the

Takings Clause, Contracts Clause, or Due Process Clause

of the U.S. Constitution. The state government can,

should, and must protect the public’s health and safety

during a pandemic to mitigate transmission of a novel and

potentially fatal pathogen, as the State of Washington has

done in the past nineteen months to combat the COVID-19

pandemic. The people of Washington, all of us collectively,

can, should, and must protect ourselves, but also one

another, during the pandemic. This worthy objective

60a

Appendix B

includes protecting the most vulnerable individuals in our

state. The eviction moratorium is part of the emergency

efforts implemented by the duly elected governor of

the State of Washington, whose role is to exercise his

powers and responsibilities to protect the people from

the COVID-19 pandemic and protect the economy of the

state. These aims were appropriately realized through

implementation of Washington’s eviction moratorium.

Accordingly, IT IS HEREBY ORDERED:

1. Defendants’ Cross-Motion for Summary Judgment,

ECF No. 30, is GRANTED.

2. Plaintiffs’ Motion for Summary Judgment, ECF

No. 22, is DENIED.

3. The District Court Executive is directed to enter

judgment in favor of Defendants and against Plaintiffs.

IT IS SO ORDERED. The District Court Clerk is

hereby directed to enter this Order, provide copies to

counsel, and CLOSE the file.

DATED this 20th day of September 2021.

/s/ Stanley A. Bastian

Stanley A. Bastian

Chief United States District Judge

61a

Appendix C

APPENDIX C — PROCLAMATIONS

OF THE

GOVERNOR OF THE STATE OF WASHINGTON

STATE OF WASHINGTON

OFFICE OF THE GOVERNOR

JAY INSLEE

Governor

PROCLAMATION BY THE GOVERNOR

20-05

WHEREAS, On January 21, 2020, the Washington

State Department of Health confirmed the first case of

the novel coronavirus (COVID-19) in the United States

in Snohomish County, Washington, and local health

departments and the Washington State Department of

Health have since that time worked to identify, contact,

and test others in Washington State potentially exposed to

COVID-19 in coordination with the United States Centers

for Disease Control and Prevention (CDC); and

WHEREAS, COVID-19, a respiratory disease that can

result in serious illness or death, is caused by the SARSCoV-2 virus, which is a new strain of coronavirus that had

not been previously identified in humans and can easily

spread from person to person; and

WHEREAS, The CDC identifies the potential public

health threat posed by COVID-19 both globally and in the

United States as “high”, and has advised that person-toperson spread of COVID-19 will continue to occur globally,

including within the United States; and

62a

Appendix C

WHEREAS, On January 31, 2020, the United States

Department of Health and Human Services Secretary

Alex Azar declared a public health emergency for

COVID-19, beginning on January 27, 2020; and

WHEREAS, The CDC currently indicates there are

85,688 confirmed cases of COVID-19 worldwide with 66

of those cases in the United States, and the Washington

State Department of Health has now confirmed localized

person-to-person spread of COVID-19 in Washington

State, significantly increasing the risk of exposure

and infection to Washington State’s general public and

creating an extreme public health risk that may spread

quickly; and

WHEREAS, The Washington State Department of Health

has instituted a Public Health Incident Management Team

to manage the public health aspects of the incident; and

WHEREAS, The Washington State Military Department,

State Emergency Operations Center, is coordinating

resources across state government to support the

Department of Health and local officials in alleviating

the impacts to people, property, and infrastructure, and

is assessing the magnitude and long-term effects of the

incident with the Washington State Department of Health;

and

WHEREAS, The worldwide outbreak of COVID-19

and the effects of its extreme risk of person-toperson transmission throughout the United States and

Washington State significantly impacts the life and health

63a

Appendix C

of our people, as well as the economy of Washington State,

and is a public disaster that affects life, health, property

or the public peace.

NOW, THEREFORE, I, Jay Inslee, Governor of the state

of Washington, as a result of the above-noted situation,

and under Chapters 38.08, 38.52 and 43.06 RCW, do

hereby proclaim that a State of Emergency exists in all

counties in the state of Washington, and direct the plans

and procedures of the Washington State Comprehensive

Emergency Management Plan be implemented. State

agencies and departments are directed to utilize state

resources and to do everything reasonably possible to

assist affected political subdivisions in an effort to respond

to and recover from the outbreak.

As a result of this event, I also hereby order into active

state service the organized militia of Washington State

to include the National Guard and the State Guard, or

such part thereof as may be necessary in the opinion

of The Adjutant General to address the circumstances

described above, to perform such duties as directed by

competent authority of the Washington State Military

Department in addressing the outbreak. Additionally,

I direct the Washington State Department of Health,

the Washington State Military Department Emergency

Management Division, and other agencies to identify and

provide appropriate personnel for conducting necessary

and ongoing incident related assessments.

64a

Appendix C

Signed and sealed with the official seal of the state

of Washington this 29th day of February, A.D., Two

Thousand and Twenty at Olympia, Washington.

By:

/s/

Jay Inslee, Governor

BY THE GOVERNOR:

/s/

Secretary of State

65a

Appendix C

PROCLAMATION BY THE GOVERNOR

AMENDING PROCLAMATION 20-05

20-19

Evictions

WHEREAS, on February 29, 2020, I issued Proclamation

20-05, proclaiming a State of Emergency for all counties

throughout Washington State as a result of the coronavirus

disease 2019 (COVID-19) outbreak in the United States

and confirmed person-to-person spread of COVID-19 in

Washington State; and

WHEREAS, as a result of the continued worldwide spread

of COVID-19, its significant progression in Washington

State, and the high risk it poses to our most vulnerable

populations, I have subsequently issued amendatory

Proclamations 20-06, 20-07, 20-08, 20-09, 20-10, 2011, 20-12, 20-13, 20-14, 20-15, 20-16, 20-17, and 20-18,

exercising my emergency powers under RCW 43.06.220 by

prohibiting certain activities and waiving and suspending

specified laws and regulations; and

WHEREAS, the COVID-19 disease, caused by a virus

that spreads easily from person to person which may

result in serious illness or death and has been classified by

the World Health Organization as a worldwide pandemic,

continues to broadly spread throughout Washington State;

and

WHEREAS, the COVID-19 pandemic is expected to cause

a sustained global economic slowdown, which is anticipated

66a

Appendix C

to cause an economic downturn throughout Washington

State with layoffs and reduced work hours for a significant

percentage of our workforce due to substantial reductions

in business activity impacting our commercial sectors that

support our state’s economic vitality, including severe

impacts to the large number of small businesses that make

Washington State’s economy thrive; and

WHEREAS, many in our workforce expect to be impacted

by these layoffs and substantially reduced work hours

are anticipated to suffer economic hardship that will

disproportionately affect low and moderate income

workers resulting in lost wages and potentially the

inability to pay for basic household expenses, including

rent; and

WHEREAS, the inability to pay rent by these members

of our workforce increases the likelihood of eviction from

their homes, increasing the life, health, and safety risks to

a significant percentage of our people from the COVID-19

pandemic; and

WHEREAS, under RCW 59.12 (Unlawful Detainer) and

RCW 59.18 (Residential Landlord Tenant Act) tenants

seeking to avoid default judgment in eviction hearings

need to appear in court in order to avoid losing substantial

rights to assert defenses or access legal and economic

assistance; and

WHEREAS, the Washington State Legislature has

established a housing assistance program in Chapter

43.185 RCW pursuant to its findings in RCW 43.185.010

67a

Appendix C

“that it is in the public interest to establish a continuously

renewable resource known as the housing trust fund and

housing assistance program to assist low and very lowincome citizens in meeting their basic housing needs”; and

WHEREAS, a temporary moratorium on evictions

throughout Washington State at this time will help reduce

economic hardship and related life, health, and safety

risks to those members of our workforce impacted by

layoffs and substantially reduced work hours or who are

otherwise unable to pay rent as a result of the COVID-19

pandemic; and

WHEREAS, the worldwide COVID-19 pandemic and its

progression in Washington State continue to threaten

the life and health of our people as well as the economy of

Washington State, and remain a public disaster affecting

life, health, property or the public peace; and

WHEREAS, the Washington State Department of

Health (DOH) continues to maintain a Public Health

Incident Management Team in coordination with the

State Emergency Operations Center and other supporting

state agencies to manage the public health aspects of the

incident; and

WHEREAS, the Washington State Military Department

Emergency Management Division, through the State

Emergency Operations Center, continues coordinating

resources across state government to support the DOH

and local health officials in alleviating the impacts to

people, property, and infrastructure, and continues

68a

Appendix C

coordinating with the DOH in assessing the impacts and

long-term effects of the incident on Washington State

and its people.

NOW, THEREFORE, I, Jay Inslee, Governor of the state

of Washington, as a result of the above-noted situation, and

under Chapters 38.08, 38.52 and 43.06 RCW, do hereby

proclaim that a state of emergency continues to exist in

all counties of Washington State, that Proclamations 2005 and all amendments thereto remain in effect, and that

Proclamation 20-05 is amended to temporarily prohibit

residential evictions statewide until April 17, 2020, as

provide herein.

I again direct that the plans and procedures of

the Washington State Comprehensive Emergency

Management Plan be implemented throughout State

government. State agencies and departments are

directed to continue utilizing state resources and doing

everything reasonably possible to support implementation

of the Washington State Comprehensive Emergency

Management Plan and to assist affected political

subdivisions in an effort to respond to and recover from

the COVID-19 pandemic.

I continue to order into active state service the organized

militia of Washington State to include the National

Guard and the State Guard, or such part thereof as may

be necessary in the opinion of The Adjutant General to

address the circumstances described above, to perform

such duties as directed by competent authority of the

Washington State Military Department in addressing

the outbreak. Additionally, I continue to direct the DOH,

69a

Appendix C

the Washington State Military Department Emergency

Management Division, and other agencies to identify and

provide appropriate personnel for conducting necessary

and ongoing incident related assessments.

ACCORDINGLY, based on the above noted situation

and under the provisions of RCW 43.06.220(1)(h), and to

help preserve and maintain life, health, property or the

public peace, effective immediately and until April 17,

2020, I hereby prohibit the following activities related to

residential evictions by all residential landlords operating

residential rental property in Washington State:

1.

Residential landlords are prohibited from serving

a notice of unlawful detainer for default payment

of rent related to such property under RCW

59.12.030(3).

2.

Residential landlords are prohibited from issuing

a 20-day notice for unlawful detainer related to

such property under RCW 59.12.030(2), unless

the landlord attaches an affidavit attesting

that the action is believed necessary to ensure

the health and safety of the tenant or other

individuals.

3.

Residential landlords are prohibited from

initiating judicial action seeking a writ of

restitution involving a dwelling unit if the alleged

basis for the writ is the failure of the tenant

or tenants to timely pay rent. This prohibition

includes, but is not limited to, an action under

Chapters 59.12 or RCW 59.18 RCW.

70a

Appendix C

4.

Local law enforcement is prohibited from serving

or otherwise acting on eviction orders that are

issued solely for default payment of rent related

to such property. Nothing in this Proclamation

is intended to prohibit local law enforcement

from acting on orders of eviction issued for

other reasons, including but not limited to

waste, nuisance or commission of a crime on the

premises.

Terminology used in these prohibitions shall have the

meaning attributed in Chapter 59.18 RCW. Violators of

this order may be subject to criminal penalties pursuant

to RCW 43.06.220(5).

Signed and sealed with the official seal of the state

of Washington on this 18th day of March, A.D., Two

Thousand and Twenty at Olympia, Washington.

By:

/s/

Jay Inslee, Governor

BY THE GOVERNOR:

/s/

Secretary of State

71a

Appendix C

PROCLAMATION BY THE GOVERNOR

AMENDING PROCLAMATIONS 20-05 AND 20-19

20-19.1

Evictions

WHEREAS, on February 29, 2020, I issued Proclamation

20-05, proclaiming a State of Emergency for all counties

throughout Washington State as a result of the coronavirus

disease 2019 (COVID-19) outbreak in the United States

and confirmed person-to-person spread of COVID-19 in

Washington State; and

WHEREAS, as a result of the continued worldwide spread

of COVID-19, its significant progression in Washington

State, and the high risk it poses to our most vulnerable

populations, I have subsequently issued amendatory

Proclamations 20-06 through 20-50 exercising my

emergency powers under RCW 43.06.220 by prohibiting

certain activities and waiving and suspending specified

laws and regulations; and

WHEREAS, the COVID-19 disease, caused by a virus

that spreads easily from person to person which may

result in serious illness or death and has been classified by

the World Health Organization as a worldwide pandemic,

continues to broadly spread throughout Washington State;

and

WHEREAS, the COV ID -19 pandemic is causing

a sust a i ned globa l econom ic slowdow n, a nd a n

economic downturn throughout Washington State with

72a

Appendix C

unprecedented numbers of layoffs and reduced work

hours for a significant percentage of our workforce due

to substantial reductions in business activity impacting

our commercial sectors that support our state’s economic

vitality, including severe impacts to the large number of

small businesses that make Washington State’s economy

thrive; and

WHEREAS, many of our workforce expected to be

impacted by these layoffs and substantially reduced work

hours are anticipated to suffer economic hardship that

will disproportionately affect low and moderate income

workers resulting in lost wages and potentially the

inability to pay for basic household expenses, including

rent; and

WHEREAS, the inability to pay rent by these members

of our workforce increases the likelihood of eviction from

their homes, increasing the life, health and safety risks to

a significant percentage of our people from the COVID-19

pandemic; and

WHEREAS, tenants, residents, and renters who are

not materially affected by COVID-19 should and must

continue to pay rent, to avoid unnecessary and avoidable

economic hardship to landlords, property owners, and

property managers who are economically impacted by

the COVID-19 pandemic; and

WHEREAS, under RCW 59.12 (Unlawful Detainer),

RCW 59.18 (Residential Landlord Tenant Act), and RCW

59.20 (Manufactured/Mobile Home Landlord-Tenant Act)

73a

Appendix C

residents seeking to avoid default judgment in eviction

hearings need to appear in court in order to avoid losing

substantial rights to assert defenses or access legal and

economic assistance; and

WHEREAS, on March 20, 2020, in response to the

COVID-19 pandemic, the Washington Supreme Court

issued Amended Order No. 25700-B-607, and ordered

that all non-emergency civil matters shall be continued

until after April 24, 2020, except such motions, actions on

agreed orders, conferences or other proceedings as can

appropriately be conducted without requiring in- person

attendance; and

WHEREAS, the Washington State Legislature has

established a housing assistance program in RCW 43.185

pursuant to its findings in RCW 43.185.010 “that it is in

the public interest to establish a continuously renewable

resource known as the housing trust fund and housing

assistance program to assist low and very low-income

citizens in meeting their basic housing needs;” and

WHEREAS, it is critical to protect tenants and residents

of traditional dwellings from homelessness, as well as

those who lawfully occupy or reside in less traditional

dwelling situations that may or may not be documented in

a lease, including, but not limited to, roommates who share

a home; transient housing in hotels and motels; “Airbnbs”;

motor homes; RVs; and camping areas; and

WHEREAS, a temporary moratorium on evictions and

related actions throughout Washington State at this

74a

Appendix C

time will help reduce economic hardship and related life,

health, and safety risks to those members of our workforce

impacted by layoffs and substantially reduced work hours

or who are otherwise unable to pay rent as a result of the

COVID-19 pandemic; and

WHEREAS, a temporary moratorium on evictions and

related actions will reduce housing instability, enable

residents to stay in their homes unless conducting

essential activities or employment in essential business

services, and promote public health and safety by reducing

the progression of COVID-19 in Washington State; and

WHEREAS, the worldwide COVID-19 pandemic and its

progression in Washington State continue to threaten

the life and health of our people as well as the economy of

Washington State, and remain a public disaster affecting

life, health, property or the public peace; and

WHEREAS, the Washington State Department of

Health continues to maintain a Public Health Incident

Management Team in coordination with the State

Emergency Operations Center and other supporting

state agencies to manage the public health aspects of the

incident; and

WHEREAS, the Washington State Military Department

Emergency Management Division, through the State

Emergency Operations Center, continues coordinating

resources across state government to support the

Washington State Department of Health and local health

officials in alleviating the impacts to people, property,

75a

Appendix C

and infrastructure, and continues coordinating with the

Department of Health in assessing the impacts and longterm effects of the incident on Washington State and its

people.

NOW, THEREFORE, I, Jay Inslee, Governor of the state

of Washington, as a result of the above-noted situation, and

under Chapters 38.08, 38.52 and 43.06 RCW, do hereby

proclaim that a State of Emergency continues to exist

in all counties of Washington State, that Proclamation

20-05 and all amendments thereto remain in effect, and

that Proclamations 20-05 and 20-19 are amended to

temporarily prohibit residential evictions and temporarily

impose other related prohibitions statewide until June 4,

2020, as provided herein.

I again direct that the plans and procedures of

the Washington State Comprehensive Emergency

Management Plan be implemented throughout State

government. State agencies and departments are

directed to continue utilizing state resources and doing

everything reasonably possible to support implementation

of the Washington State Comprehensive Emergency

Management Plan and to assist affected political

subdivisions in an effort to respond to and recover from

the COVID-19 pandemic.

I continue to order into active state service the organized

militia of Washington State to include the National

Guard and the State Guard, or such part thereof as may

be necessary in the opinion of The Adjutant General to

address the circumstances described above, to perform

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such duties as directed by competent authority of the

Washington State Military Department in addressing the

outbreak. Additionally, I continue to direct the Washington

State Department of Health, the Washington State

Military Department Emergency Management Division,

and other agencies to identify and provide appropriate

personnel for conducting necessary and ongoing incident

related assessments.

ACCORDINGLY, based on the above noted situation

and under the provisions of RCW 43.06.220(1)(h), and

to help preserve and maintain life, health, property or

the public peace, effective immediately and until June 4,

2020, I hereby prohibit the following activities related to

residential dwellings and commercial rental properties

in Washington State:

• Landlords, proper ty ow ners, and proper ty

managers are prohibited from serving or enforcing,

or threatening to serve or enforce, any notice

requiring a resident to vacate any dwelling or

parcel of land occupied as a dwelling, including

but not limited to an eviction notice, notice to

pay or vacate, notice of unlawful detainer, notice

of termination of rental, or notice to comply or

vacate. This prohibition applies to tenancies or

other housing arrangements that have expired or

that will expire during the effective period of this

Proclamation. This prohibition applies unless the

landlord, property owner, or property manager

attaches an affidavit attesting that the action is

necessary to respond to a significant and immediate

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Appendix C

risk to the health or safety of others created by the

resident.

• Landlords, proper ty ow ners, and proper ty

managers are prohibited from seeking or enforcing,

or threatening to seek or enforce, judicial eviction

orders or agreements to vacate involving any

dwelling or parcel of land occupied as a dwelling,

unless the landlord, property owner, or property

manager attaches an affidavit attesting that the

action is necessary to respond to a significant and

immediate risk to the health or safety of others

created by the resident.

• Local law enforcement are prohibited from serving,

threatening to serve, or otherwise acting on eviction

orders affecting any dwelling or parcel of land

occupied as a dwelling, unless the eviction order

clearly states that it was issued based on a court’s

finding that the individual(s) named in the eviction

order is creating a significant and immediate risk

to the health or safety of others.

• Landlords, proper ty ow ners, and proper ty

managers are prohibited from assessing, or

threatening to assess, late fees for the non-payment

or late payment of rent or other charges related to

a dwelling or parcel of land occupied as a dwelling,

and where such non-payment or late payment

occurred on or after February 29, 2020, the date

when a State of Emergency was proclaimed in all

counties in Washington State.

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Appendix C

• Landlords, proper ty ow ners, and proper ty

managers are prohibited from assessing, or

threatening to assess, rent or other charges related

to a dwelling or parcel of land occupied as a dwelling

for any period during which the resident’s access

to, or occupancy of, such dwelling was prevented as

a result of the COVID-19 outbreak.

• Except as provided in this paragraph, landlords,

property owners, and property managers are

prohibited from treating any unpaid rent or other

charges related to a dwelling or parcel of land

occupied as a dwelling as an enforceable debt or

obligation that is owing or collectable, where such

non-payment was as a result of the COVID-19

outbreak and occurred on or after February 29,

2020, the date when a State of Emergency was

proclaimed in all counties in Washington State. This

includes attempts to collect, or threats to collect,

through a collection agency, by filing an unlawful

detainer or other judicial action, withholding any

portion of a security deposit, billing or invoicing,

reporting to credit bureaus, or by any other means.

This prohibition does not apply to a landlord,

property owner, or property manager who

demonstrates by a preponderance of the evidence

to a court that the resident was offered, and

refused or failed to comply with, a re-payment

plan that was reasonable based on the individual

financial, health, and other circumstances of that

resident.

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Appendix C

• Landlords, proper ty ow ners, and proper ty

managers are prohibited from increasing, or

threatening to increase, the rate of rent or the

amount of any deposit for any dwelling or parcel

of land occupied as a dwelling. This prohibition

also applies to commercial rental property if the

commercial tenant has been materially impacted

by the COVID-19, whether personally impacted

and is unable to work or whether the business itself

was not deemed essential pursuant to Proclamation

20-25 or otherwise lost staff or customers due to

the COVID-19 outbreak.

Terminology used in these prohibitions shall be understood

by reference to Washington law, including but not limited

to RCW 49.60, RCW 59.12, RCW 59.18, and RCW 59.20.

For purposes of this Proclamation, a “significant and

immediate risk to the health or safety of others created by

the resident” (a) is one that is described with particularity,

and cannot be established on the basis of the resident’s own

health condition or disability; and (b) excludes residents

who may have been exposed to, or may have contracted,

the COVID-19, or who are following Department of Health

guidelines regarding isolation or quarantine.

FURTHERMORE, it is the intent of this order to prevent

a potential new devastating impact of the COVID-19

outbreak – that is, a wave of statewide homelessness that

will impact every community in our state. To that end,

this order further acknowledges, applauds, and reflects

gratitude for the immeasurable contribution to the health

and well-being of our communities and families made by

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Appendix C

the landlords, property owners, and property managers

subject to this order.

ADDITIONALLY, I strongly encourage every tenant to

pay what they can, as soon as they can, to help support

the landlords, property owners, and property managers

who are supporting them through this crisis.

Violators of this of this order may be subject to criminal

penalties pursuant to RCW 43.06.220(5).

Signed and sealed with the official seal of the state of

Washington on this 16th day of April, A.D., Two Thousand

and Twenty at Olympia, Washington.

By:

/s/

Jay Inslee, Governor

BY THE GOVERNOR:

/s/

Secretary of State

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Appendix C

PROCLAMATION BY THE GOVERNOR

EXTENDING AND AMENDING 20-05, 20-19,

AND 20-19.1

20-19.2

Evictions and Related Housing Practices

WHEREAS, on February 29, 2020, I issued Proclamation

20-05, proclaiming a State of Emergency for all counties

throughout the state of Washington as a result of the

coronavirus disease 2019 (COVID-19) outbreak in the

United States and confirmed person-to-person spread of

COVID-19 in Washington State; and

WHEREAS, as a result of the continued worldwide spread

of COVID-19, its significant progression in Washington

State, and the high risk it poses to our most vulnerable

populations, I have subsequently issued amendatory

Proclamations 20-06 through 20-53 and 20-55 through

20-57, exercising my emergency powers under RCW

43.06.220 by prohibiting certain activities and waiving

and suspending specified laws and regulations; and

WHEREAS, the COVID-19 disease, caused by a virus

that spreads easily from person to person which may

result in serious illness or death and has been classified by

the World Health Organization as a worldwide pandemic,

continues to broadly spread throughout Washington State;

and

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Appendix C

WHEREAS, the COV ID -19 pandemic is causing

a sust a i ned globa l econom ic slowdow n, a nd a n

economic downturn throughout Washington State with

unprecedented numbers of layoffs and reduced work

hours for a significant percentage of our workforce due

to substantial reductions in business activity impacting

our commercial sectors that support our state’s economic

vitality, including severe impacts to the large number of

small businesses that make Washington State’s economy

thrive; and

WHEREAS, many of our workforce expected to be

impacted by these layoffs and substantially reduced work

hours are anticipated to suffer economic hardship that

will disproportionately affect low and moderate income

workers resulting in lost wages and potentially the

inability to pay for basic household expenses, including

rent; and

WHEREAS, the inability to pay rent by these members

of our workforce increases the likelihood of eviction from

their homes, increasing the life, health and safety risks to

a significant percentage of our people from the COVID-19

pandemic; and

WHEREAS, tenants, residents, and renters who are

not materially affected by COVID-19 should and must

continue to pay rent, to avoid unnecessary and avoidable

economic hardship to landlords, property owners, and

property man

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