Amicus Curiae Brief — Enrique Jevons, as a Managing Member of Jevons Properties LLC, et al., Petitioners v. Jay Inslee, Governor of Washington, et al.

Supreme Court briefDec 1, 2023

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No. 23-490

IN THE

ENRIQUE JEVONS, AS A MANAGING MEMBER OF JEVONS

PROPERTIES LLC, ET AL.,

Petitioners,

JAY INSLEE, GOVERNOR OF WASHINGTON, ET AL.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF OF CITIZEN ACTION DEFENSE FUND AS

AMICUS CURIAE IN SUPPORT OF PETITIONERS

JACKSON MAYNARD

Counsel of Record

SAM SPIEGELMAN

Citizen Action Defense Fund

111 21st Avenue SW, Ste. 13

Olympia, Wash., 98501

850.519.3495

jackson@citizenactiondefense.org

sam@citizenactiondefense.org

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICUS CURIAE ............................ 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ............................................................... 1

ARGUMENT ............................................................... 4

I. As The Court Confirmed in Cedar Point, the

“Right to Exclude” Others From One’s Property Is

a Longstanding and Fundamental Attribute of

the Anglo-American Conception of Ownership .... 4

A. The Right to Exclude Is the Sine Qua Non of

Ownership .................................................... 4

B. The Original Public Meaning of “Property” 6

C. The Cedar Point Per Se Takings Test ........ 9

II. The Court Should Grant Review In Order to

Clarify That Yee v. City of Escondido Does Not

Protect Emergency, Covid-Related Eviction

Moratoria from Heightened Scrutiny Under

Cedar Point’s Per Se Takings Test ..................... 10

III.The Court Should Grant Review to Prevent

Public Officials From Using “Emergencies” to

Take Ultra Vires Actions ..................................... 19

CONCLUSION .......................................................... 23

TABLE OF AUTHORITIES

Page(s)

Cases

Alabama Association of Realtors v. Department of

Health & Human Services,

141 S.Ct. 2485 (2021) ..................................... 18, 20

Armstrong v. United States,

364 U.S. 40 (1960) .................................... 17, 20, 21

Auracle Homes, LLC v. Lamont,

478 F.Supp.3d 199 (D. Conn. 2020) ..................... 17

Block v. Hirsch,

256 U.S. 135 (1921) .............................................. 19

Cedar Point Nursery v. Hassid,

141 S.Ct. 2063 (2021) ......2-4, 7, 9-10, 12-14, 16, 21

Dobbs v. Jackson Women’s Health Org.,

142 S.Ct. 2228 (2022) ............................................. 4

El Papel, LLC v. City of Seattle,

2023 WL 7040314 (9th Cir. Oct. 26, 2023) .... 16, 17

Fed. Elec. Comm’n v. Fla. Power Corp.,

480 U.S. 245 (1987) ....................................... 12, 13

Gallo v. District of Columbia,

2023 WL 7552703 (D.D.C. Nov. 14, 2023).... 15, 17

GHP Mgmt. Corp. v. City of Los Angeles,

2022 WL 17069822 (C.D. Cal. 2022) .................. 17

iii

Gonzales v. Inslee,

535 P.3d 864 (Wash. Sep. 28, 2023) ................... 16

Heights Apartments, LLC v. Walz,

30 F.4th 720 (8th Cir. 2022) ......................... 17, 18

Kaiser Aetna v. United States,

444 U.S. 164 (1979) ............................................... 8

Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419 (1982) ........................... 8-9, 12-13, 16

Murr v. Wisconsin,

582 U.S. 383 (2017) ............................................... 7

Pa. Coal Co. v. Mahon,

260 U.S. 393 (1922) ............................................. 21

Portsmouth Harbor Land & Hotel Co. v. United

States,

260 U.S. 327 (1922) ............................................... 8

Rakas v. Illinois,

439 U.S. 128 (1978) ............................................... 8

Rental Housing Association v. City of Seattle,

22 Wash.App.2d 426 (2022) .......................... 14, 17

Roman Catholic Diocese of Bklyn. v. Cuomo,

141 S.Ct. 63 (2020) .............................................. 20

United States v. Causby,

328 U.S. 256 (1946) ............................................... 8

Williams v. Alameda Cnty., Cal.,

642 F.Supp.3d 1001 (N.D. Cal. 2022) ................. 16

Yee v. City of Escondido,

503 U.S. 519 (1992) ................... 3, 10-12, 14-15, 17

Other Authorities

Amanda L. Taylor, Judicial Review in Times of

Emergency: From the Founding Through the

Covid-19 Pandemic, 109 Va. L. Rev. 489 (2023) .. 19

Aristotle, Rhet. (c. 4th cent. BCE) .............................. 5

Brian A. Lee, Emergency Takings, 114 Mich. L. Rev.

391(2015)................................................................ 22

Bryan L. Page, State of Emergency: Washington’s Use

of Emergency Clauses and the People’s Right to

Referendum, 44 Gonz. L. Rev. 219 (2009) ............ 22

Hugo Grotius, De Jure Belli ac Pacis § II.II.II (1625)6

Jack N. Rakove, Original Meanings (1996) .............. 7

James Madison: Writings (Jack N. Rakove, ed.,

1999) ..................................................................... 6, 7

John Adams, 6 Works of John Adams (C. Adams ed.,

1851) ......................................................................... 7

John Locke, Second Treatise of Government (1689) .. 5

John Yoo, Emergency Powers During a Viral

Pandemic, 15 N.Y.U. J.L. & Liberty (2022) ......... 19

Juan Javier Del Granado, The Genius of Roman Law

from a Law and Economics Perspective, 13 San

Diego Int’l L.J. 301 (2011) ....................................... 5

Kenny Mok & Eric A. Posner, Constitutional

Challenges to the Public Health Orders in Federal

Courts During the Covid-19 Pandemic, 102 B.U. L.

Rev. 1729 (2022) .................................................... 18

Magna Carta art. 39 ................................................... 5

R. Hamad, K.A. Lyman et al., The U.S. COVID-19

County Policy Database: A Novel Resource to

Support Pandemic-Related Research, 22 BMC

Public Health (2022)............................................. 19

Richard A. Epstein, A Bombshell Decision on

Property Takings, Hoover Inst., June 28, 2021.... 13

Richard A. Epstein, The Classical Liberal

Constitution: The Uncertain Quest for Limited

Government (2014) .................................................. 6

Robert C. Ellickson & Charles DiA. Thorland,

Ancient Land Law: Mesopotamia, Egypt, Israel, 71

Chi.-Kent L. Rev. 321 (1995)................................... 4

Scott M. Reznick, Empiricism and the Principle of

Conditions in the Evolution of the Police Power: A

Model for Definitional Scrutiny, 1978 Wash. U.

L.Q. 1 (1978) ............................................................ 9

Thomas J. Bollyky, Emma Castro et al., Assessing

Covid-19 Pandemic Policies and Behaviours and

Their Economic and Educational Trade-Offs

Across U.S. States From Jan. 1, 2020 to July 31,

2022: An Observational Analysis, 401 Lancet 1341

(2023)...................................................................... 19

Thomas W. Merrill, Property and the Right to

Exclude, 77 Neb. L. Rev. 7301 (1998) ..................... 4

W. Blackstone, Commentaries on the Laws of

England (1768) ....................................................... 7

INTEREST OF AMICUS CURIAE1

This amicus brief is submitted by the Citizen

Action Defense Fund (“CADF”). CADF is an

independent, nonprofit organization based in

Washington State that supports and pursues

strategic, high-impact litigation to advance free

markets, restrain government overreach, and defend

constitutional rights. As a government watchdog,

CADF files lawsuits, represents affected parties,

intervenes in cases, and files amicus briefs when the

state enacts laws that violate the state or federal

constitutions, when government officials take actions

that infringe upon the First Amendment or other

constitutional rights, and when agencies promulgate

rules in violation of state law.

Amicus has a strong interest in the outcome of this

case as they are committed to the protection of

property rights in Washington State and throughout

the United States. Specifically, amicus is concerned

that if the lower court’s opinion in this case stands, it

will incentivize other state and local governments to

further

erode

the

fundamental

protections

constitutionally afforded to private property.

INTRODUCTION AND

SUMMARY OF ARGUMENT

In March 2020, Washington Governor Jay Inslee

instituted an eviction moratorium in response to a

1 Pursuant to Rule 37, counsel for amicus affirm that no counsel

for any party authored this brief in whole or part, and no person

or entity, other than amicus, their members, or counsel, made

any monetary contribution to its preparation or submission. All

parties received timely notice of amicus’ intention to file.

growing COVID-19 pandemic, a public health crisis

that would largely come to define American life and

politics in the years to come. Under the moratorium,

residential rental owners were prohibited from

evicting tenants under almost any circumstances,

including but not limited to (a) nonpayment of rent,

(b) the expiration of the lease term, and (c) violation

of lease terms for which eviction is a prescribed or

otherwise lawful remedy. Pet. Br. at 4. These

restrictions were a patent violation of Washington

rental owners’ constitutional “right to exclude” others

from their property, which—it should be obvious—

extends to those who, though invited in, wind up long

overstaying their contractual welcome. The right with

which Governor Inslee has interfered is a

fundamental attribute of ownership—one that dates

to the salad days of the Anglo-American legal

tradition, and was, before that, a mainstay of ancient

and medieval Western legal codes. As the Court

recently made clear in Cedar Point Nursery v. Hassid,

141 S.Ct. 2063 (2021), the Constitution continues to

robustly protect the right:

The right to exclude is “one of the most treasured”

rights of property ownership. According to

Blackstone, the very idea of property entails “that

sole and despotic dominion which one man claims

and exercises over the external things of the

world, in total exclusion of the right of any other

individual in the universe.” In less exuberant

terms, we have stated that the right to exclude is

“universally held to be a fundamental element of

the property right,” and is “one of the most

essential sticks in the bundle of rights that are

commonly characterized as property.”

Id. at 2072 (internal citations omitted).

In this brief, amicus begin with a history of the

right to exclude. This history demonstrates that the

right long predates the Constitution and has been

within the pantheon of Anglo-American law since at

least 1215. Amicus then explain how the lower courts’

reliance on Yee v. City of Escondido, 503 U.S. 519

(1992), to uphold this and several other covid-related

eviction moratoria fatally misreads the Court’s

opinion in that case and in Cedar Point, and makes it

far too easy for officials to interfere with the well-worn

rules and customs of the owner-tenant relationship.

After placing the right to exclude within the AngloAmerican legal tradition and discussing how lower

courts have and continue to misconstrue Yee and

Cedar Point in the eviction-moratorium context,

amicus conclude with why this particular case is so

important and therefore worthy of the Court’s review.

Permitting Governor Inslee and other public

officials to run roughshod over the fundamental rights

of ownership without compensation exposes housing

providers across the United States to future

extraconstitutional restrictions under false claims or

exaggerations of an “emergency.” Covid-related

eviction moratoria predictably have generated

substantial litigation in recent years and there is

widespread concern that if the Court does not

intervene it will further embolden state and local

officials to trample civil rights using subterfuge. In

light of these factors, covid-related eviction

moratoria—even those that have expired—together

serve as an ideal vehicle through which the Court can

make clear to the Ninth and other circuits that

fundamental rights are fundamental, no matter the

reasons for which they have been violated.

ARGUMENT

As The Court Confirmed in Cedar Point,

the “Right to Exclude” Others From One’s

Property

Longstanding

and

Fundamental Attribute of the AngloAmerican Conception of Ownership

A. The Right to Exclude Is the Sine Qua Non of

Ownership

The Court regularly—and properly—relies upon

legal history and tradition to site fundamental rights,

even those not explicitly included in the Constitution’s

text (cf., the right to free speech). Dobbs v. Jackson

Women’s Health Org., 142 S.Ct. 2228, 2246–48 (2022).

The history of the “right to exclude” in particular

highlights its consistent and quintessential role in

limiting governmental overreach. In a celebrated

article, Professor Thomas Merrill called the right

“more than just ‘one of the most essential’ constituents

of property—it is [its] sine qua non”—i.e., ownership

could not exist without it. Thomas W. Merrill,

Property and the Right to Exclude, 77 Neb. L. Rev.

730, 730–31 (1998). This is especially so in the AngloAmerican conception of property, though the right to

exclude has been a mainstay of most legal and

cultural frameworks since the dawn of civilization.

See Robert C. Ellickson & Charles DiA. Thorland,

Ancient Land Law: Mesopotamia, Egypt, Israel, 71

Chi.-Kent L. Rev. 321, 341 (1995) (“The foundational

norm of private property” being “the right to control

entry. On this legal issue there is much textual

evidence from Mesopotamia and Israel, the two

civilizations for which law codes have been found.”).

The right to exclude as the sine qua non of ownership

has been central to Western legal theory since at least

the Greek Golden Age and the Pax Romana. See

Aristotle, Rhet., 1361a (c. 4th cent. BCE) (writing that

a thing “is our own if it is in our power to dispose of it

or not”); Juan Javier Del Granado, The Genius of

Roman Law from a Law and Economics Perspective,

13 San Diego Int’l L.J. 301, 316 (2011) (“Roman

property law typically gives a single property holder a

bundle of rights with respect to everything in his

domain, to the exclusion of the rest of the world.”).

In light of what had already been its long history,

it is no surprise that the “right to exclude” was among

the core freedoms English King John’s rebellious

barons demanded from him in the Magna Carta

(1215)—the “Great Charter” that put a (granted,

temporary) stop to their uprising. Specifically, the

Great Charter includes that “[n]o free man shall be

seized or imprisoned, or stripped of his rights or

possessions . . . except by the lawful judgments of his

equals or by the law of the land.” Magna Carta art. 39

(cleaned up) (emphasis added).

By the 1600s, after centuries of violent struggle

between kings, nobles, and crowds for overall political

hegemony

Europe’s

nation-states,

many

“Enlightenment” thinkers began gravitating towards

the most rights-based theories of government

theretofore conceived. Most prominent among those

spearheading this welcome shift was English

philosopher John Locke, who soon after the Glorious

Revolution of 1688 declared that the “great and chief

end” for which men “unite into commonwealths” is to

ensure the “preservation of their property.” John

Locke, Second Treatise of Government, IX § 123 (1689)

(cleaned up). Locke himself found inspiration in the

writings of Dutchman Hugo Grotius, who earlier

offered that “no man could justly take from another,

what he had thus first taken to himself.” Hugo

Grotius, De Jure Belli ac Pacis § II.II.II (1625).

Shortly after ratification, Madison gave full

endorsement

his

intellectual

forebears’

understanding of property, declaring “[t]his being the

end of government, that alone is a just government,

which impartially secures to every man, whatever is

his own.” James Madison, “Property,” in James

Madison: Writings 515 (Jack N. Rakove, ed., 1999)

(1792). And in this he was hardly alone.

B. The Original Public Meaning of “Property”

Summarizing the classical-liberal contours of

public authority, preeminent legal scholar Richard

Epstein declared that “the proper ends under the

police power are those of the private law of nuisance,

no more and no less.” Richard A. Epstein, The

Classical Liberal Constitution: The Uncertain Quest

for Limited Government 353 (2014). Epstein did not

devise this approach in a vacuum. Rather, it reflects

the consensus understanding of government—and the

limitations thereon, especially with respect to

property rights—shared between the Constitution’s

Framers and among late-eighteenth and early-to-midnineteenth centuries American courts tasked with

interpreting their words. Together, their conception of

the Takings Clause and property in general comprise

the former’s original public meaning, a theory of

interpretation that, with some ebbs and flows, has

proven the most durable means of constitutional

interpretation. Precisely because it asks what the

document was popularly understood to mean at

ratification. See Jack N. Rakove, Original Meanings

339–68 (1996).

The Framers, following in Locke’s footsteps,

understood the necessity for robust constitutional

protection of property. James Madison, the chief

author of the Constitution (including of the Takings

Clause), already enamored of Locke and Grotius, also

relied upon eminent English jurist William

Blackstone’s definition of property—viz., “that sole

and despotic dominion which one man claims and

exercises over the external things of the world, in total

exclusion of the right of any other individual in the

universe.” W. Blackstone, Commentaries on the Laws

of England *2 (1768); Madison, supra, at 515 (“This

term in its particular application means ‘that

dominion which one man claims and exercises over

the external things of the world, in exclusion of every

other individual.’”).

The Court has wholeheartedly endorsed the

Blackstonean definition of property as essentially the

right to exclude, most recently in Cedar Point. 141

S.Ct. at 2072. “The Founders,” Chief Justice Roberts

eloquently wrote, “recognized that the protection of

private property is indispensable to the promotion of

individual freedom.” As John Adams tersely put it,

“[p]roperty must be secured, or liberty cannot exist.”

“Discourses on Davila,” in 6 Works of John Adams (C.

Adams ed., 1851). This Court agrees, having noted

that protection of property rights is “necessary to

preserve freedom” and “empowers persons to shape

and to plan their own destiny in a world where

governments are always eager to do so for them.”

Murr v. Wisconsin, 582 U.S. 383, 394 (2017).

Four decades earlier, a majority of the justices

acknowledged, “in less exuberant terms,” id., that the

right to exclude is “universally held to be a

fundamental element of the property right” that is

“one of the most essential sticks in the bundle of rights

that are commonly characterized as property.” Kaiser

Aetna v. United States, 444 U.S. 164, 176 (1979). See

also Rakas v. Illinois, 439 U.S. 128, 144 n.12 (1978)

(“One of the main rights attaching to property is the

right to exclude others . . .”); United States v. Causby,

328 U.S. 256 (1946) (agreeing that military flyovers

into skies about private farmland, without

compensating the owner, is a takings violation);

Portsmouth Harbor Land & Hotel Co. v. United

States, 260 U.S. 327 (1922) (similar to Causby, but

involving the military’s firing cannons over private

airspace).

After Kaiser Aetna the Court went even further,

concluding in Loretto v. Teleprompter Manhattan

CATV Corp., 458 U.S. 419 (1982), that “[t]he historical

rule that a permanent physical occupation of

another’s property is a taking has more than tradition

to commend it.” Id. at 435. “Such an appropriation is

perhaps the most serious form of invasion of an

owner’s property interests.” Id. Why? Because unlike

restrictions on use, “the government does not simply

take a single ‘strand’ from the ‘bundle’ of property

rights: it chops through the bundle, taking a slice of

every strand.” Id. (citing Andrus v. Allard, 444 U.S.

51, 6 –66 (1979)). Without the right to exclude, an

owner loses “any power to control the use of the

property; he not only cannot exclude others, but can

make no nonpossessory use of the property.” Id. at

436. And this is exactly what Governor Inslee has

taken from Petitioners.

C. The Cedar Point Per Se Takings Test

The majority in Cedar Point distinguished

between the “physical appropriation of property” ala

Loretto (which involved the running of television cable

on top of private apartments), and governmental

trespasses or occupations that are conditions for “the

grant of a benefit such as a permit, license, or

registration.” 141 S.Ct. at 2079. The latter will often

involve state actions designed specifically to prevent

or minimize the nuisant use of one’s property, which

has never been within the common-law ambit of

ownership. See Scott M. Reznick, Empiricism and the

Principle of Conditions in the Evolution of the Police

Power: A Model for Definitional Scrutiny, 1978 Wash.

U. L.Q. 1, 10 (1978) (“Sic utere [tuo alienum non

laedas]”—roughly, ‘do not use your land so as to injure

others’—is the fountainhead maxim from which both

the common law of nuisance and the police power

arose. As originally applied, sic utere ‘operated to

protect real property from what the courts thought

were injuries resulting from the use of another of his

real property.’ That is, the courts used sic utere

principles to resolve cost spillover conflicts between

the existing uses of neighboring landowners. This

relationship in tort between property owners

originally caused the maxim and the emerging police

power to be defined in terms of the prevention of

harms.”).

The distinction between takings, on the one hand,

and anti-nuisance rules or benefit-conditional

“government health and safety inspection regimes” on

the other is simple enough, and certainly does not

complicate the high standard of review that the per se

rule imposes on physical occupations. While the

application of the rule to Governor Inslee’s eviction

moratorium is reserved for the merits, at this stage

amicus urge the Court to consider the importance of

reviewing an appeals-court ruling that—especially

after Cedar Point—maintains the false premise that

nearly any public purpose justifies and excuses

invasions of private property.

Taking all of this into consideration, it is

reasonable to ascribe to Cedar Point the following

foundational test: Outside of standing “inspection

regimes” and other laws designed to prevent nuisant

uses of private property—i.e., state actions preventing

owners from utilizing their properties in ways the

common law already patently prohibits—government

must always pay for what it takes. 141 S.Ct. at 2071.

Applied here, the test requires Washington

compensate Petitioners for lost rent and any other

provable damages resulting from the third-party

occupation of their properties—that is, for the period

past the point at which the contractual or de jure

owner-tenant relationship in each case had ended.

And it is this detail—the moratorium’s forced

extension of tenancies—that renders Yee all but

irrelevant to whether Governor Inslee’s actions

violated the Takings Clause.

II.

The Court Should Grant Review In Order

to Clarify That Yee v. City of Escondido

Does Not Protect Emergency, CovidRelated

Eviction

Moratoria

from

Heightened Scrutiny Under Cedar Point’s

Per Se Takings Test

The District Court for the Western District of

Washington relied upon Yee to uphold Governor

Inslee’s covid-related eviction moratorium, concluding

that “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.” Jevons, 561

F.Supp.3d 1082, 1106. Other courts have done the

same or similar. See infra. This comparison ignores a

crucial distinction between the two cases, however.

The local ordinance in Yee did not “require” mobile

park owners in the City of Escondido “to lease to

tenants beyond their original lease terms,” but merely

prohibited them from raising rents on mobile home

“pads” (i.e., lots), allowing those selling their mobile

homes within the park to pocket “a premium from the

purchaser corresponding to” the added value of “the

right to occupy a pad at below-market rent

indefinitely.” 503. U.S. 527. It is vital to note,

however, that the Yees were at all times legally free

to withdraw from the rental market altogether (first

subject, of course, to any outstanding contractual

terms), and that the entire outcome would have been

different if “the statute . . . [were] to compel a

landowner over objection to rent his property or to

refrain in perpetuity from terminating a tenancy.” 503

U.S. at 528 (emphasis added). “On their face,” the Yee

Court continued, “the state and local laws at issue

here merely regulate petitioners’ use of their land by

regulating the relationship between landlord and

tenant.” Id. (emphasis original). It forced mobile park

owners to host tenants at apparently below-market

rates, not to continue hosting them until the

government permitted their removal. Yet Governor

Inslee’s moratorium did all of this and more. It

thwarted one Petitioner’s “attempt[] to evict a tenant

who had stopped paying rent”—an evictable offense—

“and created enough noise in her unit that a neighbor

complained.” Pet. Br. at 6. Another Petitioner “had

171 tenants who were not current with their rent” Id.

at 5. And all the while the Petitioners still could not

evict anyone who wished to stay. Id. at 4. In short,

Governor Inslee’s eviction moratorium went far

beyond the permissible “regulating [of] the economic

relations” between “landlords and tenants,” Fed. Elec.

Comm’n v. Fla. Power Corp. 480 U.S. 245, 252 (1987),

and into the realm of occupation.

And it should go without saying: occupation is not

regulation. While the Yees could not “set rents or

decide who their tenants will be,” they were at least

allowed to take each pad out of the rental market

altogether. Yee, 503 U.S. at 526. Petitioners here had

no such luxury. So long as the government maintained

a pandemic state of emergency, Petitioners would be

forced to continue housing most holdovers—i.e.,

trespassers—with eviction permitted under only the

narrowest of circumstances. In this light, perpetuity

does not mean “permanent”—nor must it. Just as

Loretto clarified that neither the purpose nor extent of

an invasion is relevant to whether a physical

occupation works a taking, 458 U.S. at 436–37, Cedar

Point explained—though hardly for the first time in

the Court’s history—that an invasion’s temporary

duration is also far from dispositive:

To begin with, we have held that a physical

appropriation is a taking whether it is permanent

or temporary. Our cases establish that

“compensation is mandated when a leasehold is

taken and the government occupies property for its

own purposes, even though that use is temporary.”

The duration of an appropriation—just like the

size of an appropriation—bears only on the

amount of compensation. For example, after

finding a taking by physical invasion, the Court in

Causby remanded the case to the lower court to

determine “whether the easement taken was

temporary or permanent,” in order to fix the

compensation due.

141 S.Ct. at 2074 (internal citations omitted). The

duration of Governor Inslee’s eviction moratorium is

therefore irrelevant to the overall takings question. It

is only useful as a gauge for how much compensation

the government owes to each owner who was forced to

host “tenants” beyond the conclusion of their leases.

Id. at 2074 (“The duration of an appropriation—just

like the size of an appropriation—bears only on the

amount of compensation.”). And so it is that “the line

which separates [cases involving no forced physical

occupation] from Loretto is the unambiguous

distinction between a commercial lessee and an

interloper with a government license.” Florida Power,

480 U.S. at 253.

As Professor Epstein reiterated soon after the

Court decided Cedar Point: “It is pure sophistry to

claim that the state does not engage in a taking when

it authorized a tenant to stay continuously in

possession of the leased premises after the expiration

of the lease at a rent that is consciously set below

market value.” Richard A. Epstein, A Bombshell

Decision on Property Takings, Hoover Inst., June 28,

2021, https://rb.gy/qcn6nu. That is, “invitation”

implies continual consent, which can be legally

withdrawn at any time (again, whether that would

constitute a private breach is another matter). When

one welcomes invited dinner guests into their vacation

home, for example, the parties agree that the

invitation ends that evening. If someone invites a

friend to stay with them—free of charge—until the

latter is “back on their feet,” the former does not, nor

should they reasonably expect, that that friend will

continue staying there once they are back in a position

to live elsewhere. In either case, the parties are free

to draw up a new agreement—perhaps, say, extending

the dinner party into a full weekend retreat. But that

would mean creating an entirely new invitation.

Compared to these hypotheticals, Governor Inslee’s

eviction moratorium at least violated each Petitioner’s

reasonable expectation that once their tenants’ lease

agreements ended—by expiration or the lessee’s

violation of terms—so too would their invitation to

continue occupying the property.

Some courts—though not all—have denied or

ignored this crucial point, and have misread or

misconstrued Yee to all but entirely exempt stateprotected tenant holdovers from Cedar Point’s per se

takings test. For example, in Rental Housing

Association v. City of Seattle, a Washington State

appeals court heard a challenge to Seattle’s covidrelated eviction moratorium. Finding for Seattle, the

court conceded that “Yee was premised on the fact that

the applicable rent control laws did not affect the

landlords’ right to exclude anyone from their

property.” 22 Wash.App.2d 426, 448 (2022). Yet it

proceeded to apply it favorably to an ordinance that

did just that, on the flawed premise that Seattle’s

eviction moratorium “d[id] not require a landlord to

rent property to anyone with whom the landlord has

not already voluntarily entered into a lease

agreement.” But an initial invitation does not cancel

out all the other terms of a lease agreement. To

suggest otherwise is to stretch the concept until it

consumes the entirety of the owner-tenant

relationship, when in fact it merely marks its

commencement.

Other courts have made the same categorical error

when using Yee to uphold covid-related eviction

moratoria. One court presumed that the “mobile home

eviction bar” in Yee “did not constitute a ‘compelled

physical invasion’ because the Yees had ‘voluntarily

rented their land to mobile home owners’ in the first

place.” Gallo v. District of Columbia, 2023 WL

7552703, at *5 (D.D.C. Nov. 14, 2023) (slip op.). “In

other words,” the court continued, “the Yees had

consented to the initial physical occupation of their

land when they leased the property to the tenants. At

most, the government policy prolonged that

occupation.” Id. In truth, Yee involved a rate control

ordinance that “took” from the plaintiffs the amount

by which they could have increased rent between

tenants, but for the local law preventing them from

quickly delisting and then re-renting its pads. 503

U.S. at 526–27. That is, the Yees could not reject new

tenants in order to skirt the ordinance by briefly

removing units from the rental market. At no time

were the Yees legally prohibited from actually

removing their pads from the rental market and thus

out from under the disputed ordinance’s mandate.

Plaintiffs challenging covid-related eviction moratoria

did not have this option so long as their state or local

ban remained in effect. Gallo, 2023 WL at *7 (“To be

sure, Gallo was unlucky in the timing of his realestate investment. He bought what he thought would

be a profitable residential unit, and he ended up with

a freeloader who avoided eviction because of the

District's COVID-related eviction prohibition.”).

In El Papel, LLC v. City of Seattle, the Ninth

Circuit recently reached the same flawed conclusion,

reasoning that because the eviction ban did not entail

physical invasions from the get-go that it could not

have effected any takings. 2023 WL 7040314, at *2

(9th Cir. Oct. 26, 2023). The Ninth Circuit also noted

that the eviction moratorium in issue still “allowed

the [l]andlords to evict their tenants for some specified

purposes,” and that this also saves it by making the

physical occupation less than all-encompassing. Id.

But under Loretto and Cedar Point the right to

exclude is all or nothing. The government violates it

regardless of the extent or duration of the

interference, and thus whether or not the owner can

exercise the right in some cases. 141 S.Ct. at 2074

(discussing Loretto’s “heightened concerns associated

with ‘[t]he permanence and absolute exclusivity of a

physical occupation,” 458 U.S. at 435, before

proceeding to the narrow “inspections” and antinuisance carveouts that merely illustrates the

Takings Clause protects the common-law conception

of property; no more, no less). See also Gonzales v.

Inslee, 535 P.3d 864, 870, 873 (Wash. Sep. 28, 2023)

(holding that even if Cedar Point applies to

Washington’s takings clause, it does not protect rental

owners from the challenged moratorium because

“there has been no similar intrusion here”); Williams

v. Alameda Cnty., Cal., 642 F.Supp.3d 1001, 1007

(N.D. Cal. 2022) (ignoring Loretto and concluding that

the challenged moratoria “are not an impermissible

physical or per se taking because they are temporary

and not definite on their face”); GHP Mgmt. Corp. v.

City of Los Angeles, 2022 WL 17069822, at *3 (C.D.

Cal. 2022) (incorrectly distinguishing a covid-related

eviction moratorium’s “limited, albeit indeterminate”

duration from a law that forces an owner to “refrain

in perpetuity from terminating a tenancy”); Auracle

Homes, LLC v. Lamont, 478 F.Supp.3d 199, 220 (D.

Conn. 2020) (incorrectly assuming that Yee, in holding

“government effects a physical taking only when it

requires the landowner to submit to the physical

occupation of the land,” forever exempted from its

sweep any state-sponsored trespass that did not start

out as one).

In excellent contrast to the outcomes in Rental

Housing Association, Gallo, El Papel, and like

opinions, the Eight Circuit in Heights Apartments,

LLC v. Walz, 30 F.4th 720 (8th Cir. 2022), held Yee

“distinguishable”

from

Minnesota’s

eviction

moratorium, on the same basis upon which

Petitioners’ do theirs. Id. at 733. “The landlords in Yee

sought to exclude future or incoming tenants rather

than existing tenants,” while “here, the [executive

orders] forbade the nonrenewal and termination of

ongoing leases, even after they had been materially

violated.” Id. The Eighth Circuit begins and ends their

Yee analysis there. There is, after all, not much more

to say. While the other courts hyper-focused on initial

invitations to conclude that no invasions occurred, the

Eighth Circuit looked past the semantics and asked,

simply, whether the public is “forcing some people

alone to bear public burdens which, in all fairness and

justice, should be borne by the public as a whole.”

Armstrong v. United States, 364 U.S. at 49 (1960).

With the case then still at the pleadings stage, the

Eighth Circuit accepted Heights Apartments, LLC’s

argument that Minnesota’s eviction moratorium

“improperly imposed the cost of fighting homelessness

on a subset of the population: rental property owners.”

Heights Apartments, 30 F.4th at 734. Relying upon

this Court’s ruling in Alabama Association of Realtors

v. Department of Health & Human Services, the

Eighth Circuit remained “unconvinced that as a

matter of law the [Minnesota executive orders] are

permissible non-compensable takings.” Id. at 735

(citing 141 S.Ct. 2485, 2489 (2021)).

If this circuit split is not, by itself, reason enough

for the Court to grant review of this case, it certainly

becomes so when considering the broader context. As

the pandemic unfolded, lawmakers and bureaucrats

across the country breathlessly declared that in times

of crisis the Constitution is no barrier to action. And

the lower courts largely deferred to such claims. See

Kenny Mok & Eric A. Posner, Constitutional

Challenges to the Public Health Orders in Federal

Courts During the Covid-19 Pandemic, 102 B.U. L.

Rev. 1729, 1733 (2022) (“In the aggregate, federal

courts ruled in favor of plaintiffs—striking down

public health orders—in 14.2% of the cases,

suggesting a high level of deference to the

government.”). If the Court does not put a stop to this

behavior its silence will embolden public officials to

make increasingly outrageous ultra vires gambits,

and it will strengthen the already-perilous incentive

structure that let those officials take things this far in

the first place.

III.

The Court Should Grant Review to

Prevent Public Officials From Using

“Emergencies” to Take Ultra Vires Actions

Unless the Court intervenes here, lower courts will

continue permitting state and local officials to

exaggerate or invent emergency powers to shield ultra

vires acts from the judicial scrutiny they deserve. In

Block v. Hirsch, the Court upheld a District of

Columbia rent-control ordinance on the grounds that

the emergency—urban overpopulation resulting from

the rapid acceleration of industrial output during the

First World War—was “a publicly, notorious and

almost worldwide fact.” 256 U.S. 135, 154 (1921).

Whether the coronavirus pandemic was an emergency

sufficient to justify state-sponsored holdover

tenancies and other drastic measures is a matter of

much greater debate. See, e.g., Amanda L. Taylor,

Judicial Review in Times of Emergency: From the

Founding Through the Covid-19 Pandemic, 109 Va. L.

Rev. 489 (2023); John Yoo, Emergency Powers During

a Viral Pandemic, 15 N.Y.U. J.L. & Liberty 822

(2022). Thus did the White House, states, counties,

and municipalities offer wildly different and often

divergent responses. See R. Hamad, K.A. Lyman et al.,

The U.S. COVID-19 County Policy Database: A Novel

Resource to Support Pandemic-Related Research, 22

BMC Public Health 1882 (2022); Thomas J. Bollyky,

Emma Castro et al., Assessing Covid-19 Pandemic

Policies and Behaviours and Their Economic and

Educational Trade-Offs Across U.S. States From Jan.

1, 2020 to July 31, 2022: An Observational Analysis,

401 Lancet 1341 (2023). Among these measures, one

stands out as particularly bold: the Centers for

Disease Control and Prevention’s (“CDC”) nationwide

eviction moratorium, which the Court dispatched per

curiam. Ala. Ass’n of Realtors, 141 S.Ct. 2485 (2021).

Though its ultimate conclusion was that Congress,

rather than a lone federal agency, decides what

constitutes an “emergency” of the caliber necessary to

justify the disruption of property rights, the Court in

Alabama Association of Realtors crucially noted that

the CDC’s “preventing [rental owners] from evicting

tenants who breach their leases intrudes on one of the

most fundamental elements of property ownership—

the right to exclude. Id. at 2489.

Perhaps on the merits the Court will find, in view

of the Framers’ intent and its own emergencies

doctrine, that Governor Inslee indeed acted within his

police powers when he instituted the eviction

moratorium here in issue. Still, as the Court noted in

an earlier covid case, “even in a pandemic the

Constitution cannot be put away and forgotten.”

Roman Catholic Diocese of Bklyn. v. Cuomo, 141 S.Ct.

63, 68 (2020). That is, “emergencies” are not get-outjail-free cards for those who have sworn to uphold the

Constitution. This is especially the case for property

rights—the ends of government, as Locke declared—

which are particularly susceptible to erosion when the

majority takes unfettered and unprincipled actions.

The Takings Clause is that restraining mechanism.

Casting it aside in times of crisis is a recipe for

constitutional disaster.

In Armstrong v. United States, 364 U.S. 40 (1960),

the Court noted that the Takings Clause “was

designed to bar government from forcing some people

alone to bear public burdens which, in all fairness and

justice, should be borne by the public as a whole.” Id.

at 49. To this equation Cedar Point adds that the

government “must pay for what it takes” unless it is

not taking anything at all but merely restricting

harmful uses or acting in accordance with

longstanding legal practice. 141 S.Ct. at 2079–80.

Under Armstrong and Cedar Point, therefore,

emergency measures involving uncompensated

physical invasions of private property are only

justified if the state’s legal tradition, narrowly

construed, allows it, or if the cost to the impacted

owners is commensurate with the public losses

resulting from the use or misuse the measure is

designed to prevent. 141 S.Ct. at 2079 (citing Lucas v.

South Carolina Coastal Council, 505 U.S. 1003, 1028–

29 (1992) for the proposition that “many governmentauthorized physical invasions will not amount to

takings because they are consistent with longstanding

background restrictions on property rights”); Pa. Coal

Co. v. Mahon, 260 U.S. 393, 415 (1922) (suggesting

that certain would-be takings are no longer so—or are

at least thereby just compensation in-kind—when the

disputed restrictions benefit the impacted owners as

much (or more) than it costs them; i.e., if it gives them

a “reciprocity of advantage”).

Whether Governor Inslee’s eviction moratorium

fits either of these frameworks ultimately is a

question for the merits. But posing the question here

shows both the doctrinal and real-world stakes

involved. And it hints strongly at the potential costs

of the Court’s failing to intervene. Washington legal

history all but rules out the first option—that

Governor Inslee was operating under well-worn state

practice. See Bryan L. Page, State of Emergency:

Washington’s Use of Emergency Clauses and the

People’s Right to Referendum, 44 Gonz. L. Rev. 219,

238–46 (2009). It remains to be seen whether

Governor Inslee’s eviction moratorium meets the

second criterion of a physical invasion that merely

forces rental owners’ to internalize the would-be

public costs of their use or misuse thereof. It is hard

to see a proximate causal connection between the

enforcement of ordinary contractual obligations and

the makings of a public health disaster. The two are

only connected insofar as shelter is always necessary

to human life and thus always something to consider

when formulating public policies. In its uberdeference to official characterizations of Governor

Inslee’s eviction moratorium, the Western District of

Washington and the Ninth Circuit took this for

granted. Meanwhile in Apartment Heights the Eighth

Circuit rightly asked that the government first

provide some evidence that using the impacted units

for anything other than housing former tenants would

cause public harms that then doing so prevented. The

Court’s emergency-takings precedent suggests the

answer is no. That it is not enough for the government

to proffer that a property interference is preventing

public harm rather than merely conferring a public

benefit (for which compensation is owed). See Brian A.

Lee, Emergency Takings, 114 Mich. L. Rev. 391, 392 –

401 (2015) (discussing the Court’s varying treatment

of the Takings Clause within different emergency

contexts). Whatever the outcome, amicus urge the

Court to grant review of this case in order to resolve

these and the other outstanding legal questions at

stake.

CONCLUSION

For the foregoing reasons and those stated in the

Petition, the Court should grant review of the

Petition, reverse the Ninth Circuit, and remand the

case for further proceedings in accordance with the

Court’s longstanding recognition that state-compelled

third-party occupations of property beyond the

parties’ agreed-upon terms violates the fundamental

right to exclude.

Respectfully submitted,

DECEMBER 2023

/S/ JACKSON MAYNARD