Amicus Curiae Brief — Gene Gonzales, et al., Petitioners v. Jay Inslee, Governor of Washington, et al.

Supreme Court briefApr 17, 2024

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No. 23-935

IN THE

SUPREME COURT OF THE UNITED STATES

_________________________________________

Gene Gonzales, et al.,

Petitioners,

Jay Inslee, Governor of Washington, et al.,

Respondents.

________________________________________________

On Petition for a Writ of Certiorari to the

Supreme Court of Washington

Illinois Rental Property Owners Association’s

Amicus Brief In Support of Granting Petition For

Writ Of Certiorari

Michael Kemp

Counsel of Record

Met Law Office

326 Fourth Street Northeast

Minneapolis, MN 55413

(651) 998-9529

mkemp@metlawoffice.com

Counsel for Amicus Curiae

Table of Contents

Interest of Amicus Curiae ........................................ 1

Introduction and Summary of Argument ................ 3

Argument .................................................................. 4

I. Background .......................................................... 4

II. This Court’s Jurisprudence Requires

Compensation When Property Owners Are

Forced To Accept Continued, Physical

Occupation Of Their Property By Governmental

Action ................................................................... 6

III.The Court Below Over-Read Yee And UnderRead Cedar Point Nursery In Concluding That A

Physical Taking Only Occurs With The Physical

Intrusion Of A Stranger Onto The Property ...... 8

A. A Taking Occurs When Government Action

Causes The Physical Occupation Of A

Property ........................................................... 9

B. A Past Invitation Onto A Property Does Not

Provide License For Indefinite Future

Occupation ..................................................... 12

Conclusion ............................................................... 16

Table of Authorities

Cases

Cedar Point Nursery v. Hassid,

594 U.S. 139 (2021) ................... 6, 8, 10, 12, 13, 16

Gonzales v. Inslee,

535 P.3d 864 (Wash. 2023) .............. 4, 5, 8, 10, 11,

12, 13, 16

Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419 (1982) ............................................... 6

NLRB v. Babcock & Wilcox Co.,

351 U.S. 105 (1956) ............................................. 12

Nollan v. California Coastal Commission,

483 U.S. 825 (1987). .............................................. 7

Yee v. City of Escondido, Cal.,

503 U.S. 519 (1992) ..................... 7, 8, 9, 10, 11, 13

Constitutional Provisions

U.S. Const., Amend. V ............................ 1, 3, 4, 9, 10

Wash. Const., Article I, Section 16 ...................... 3, 9

Restatements

Restatement (Second) of Torts § 332 ............... 13, 14

Treatises

2 W. Blackstone, Commentaries on the Laws of

England 2 (1766) ...................................................... 9

4 Wayne R. LaFave, Search and Seizure:

A Treatise on the Fourth Amendment § 8.5(a)

(4th ed. 2004) .......................................................... 13

Merrill, Property and the Right to Exclude,

77 Neb. L. Rev. 730 (1998) ..................................... 10

INTEREST OF AMICUS CURIAE 1

The mission of Amicus curiae Illinois Rental

Property Owners’ Association (“IRPOA”) is to

provide a statewide organization to promote the

interests of persons, firms, and corporations who

develop, own, or manage residential rental housing,

to inform members about current issues and

interests, including legislative activities, and to

conduct such activities as are necessary to carry out

the goals of the Association. IRPOA represents the

interests of eleven Illinois organizations, which

associate through IRPOA to help rental property

owners across the state. The eviction moratoria in

Illinois and across the country, which are the focus

of this case, will continue to affect property rights

long after the pandemic has ceased.

IRPOA’s primary interest in the case comes

down to a single word: “are.” In the case presented

by petition for writ of certiorari, the Washington

Supreme Court found that the property owners had

suffered no loss of rights recognized by the Takings

Clause because “[t]he tenants are on the landlords’

property with the landlords’ permission” (emphasis

added). Looming in this use of the present tense is

1 Pursuant to Rule 37, counsel for amicus affirms 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.

the conclusion that property owners, having once

invited a tenant onto their property, have not

suffered a compensable taking when they lose the

right to exclude those tenants. This sweeping

declaration has the potential to reach far past the

strict confines of the landlord-tenant relationship in

the COVID-19 context from which it was born—

indeed, the COVID-19 pandemic provides the

backdrop, but not the justification, for the holding of

the Washington Supreme Court.

Because of its mission, IRPOA is greatly

concerned by the erosion of property rights such a

declaration would bring, including the extension of

this decision far beyond the crisis during which it

was decided. IRPOA maintains a strong interest in

retaining the right not only to begin a landlordtenant relationship, but to retain the right to end

one, and to set reasonable conditions on the terms of

the relationship in between.

Because the ruling by the Washington

Supreme Court has implications for so many of our

member organizations in situations which go beyond

the COVID-19 pandemic and into the day-to-day

operations of rental properties, Amicus IRPOA

respectfully requests that this Court grant the

petition for a writ of certiorari under Rule 10(c).

INTRODUCTION AND SUMMARY OF ARGUMENT

The eviction moratorium at issue in the case

presented was not merely an issue local to

Washington; COVID-19 eviction moratoria were

enacted by the federal government and forty-four

states including Illinois, the home state of Amicus

IRPOA. The precedents set by COVID-era opinions

remain worthy of review even after the pandemic

because of the likelihood that they will be read

beyond the circumstances which provoked them,

even when they clash with precedent this Court has

set in less eventful times.

Here, in a lawsuit regarding the eviction

moratorium proclaimed by Respondents, the

Washington Supreme Court held that the actions of

Respondents did not constitute a taking under the

meaning of Article I, Section 16 of the Washington

Constitution and this Court’s Fifth Amendment

jurisprudence. This holding misread both Yee v. City

of Escondido and Cedar Point Nursery v. Hassid, by

reading the former too broadly and the latter too

narrowly. In so doing, the Washington Supreme

Court significantly narrowed a property owners’

rights to exclude others from their properties under

the Takings Clause in a way that conflicts with

relevant decisions of this Court.

The right to exclude is the sine qua non of

property rights, and property owners do not lose

their right to exclude others from their rental

properties merely by having entered the rental

property business. This Court should grant the

petition for writ of certiorari to affirm that its longstanding Takings Clause jurisprudence remains

good law, even after the COVID-19 pandemic.

ARGUMENT

The primary issue addressed in this brief is the

conclusion of the Court below that a property owner,

having invited a tenant to live on their property,

may lose the right to exclude the tenant from the

property. The Court below concluded that because

the landlords had suffered no intrusion from a

stranger to their property, they had suffered no

taking. Gonzales v. Inslee, 535 P.3d 864, 873 (Wash.

2023) .

In coming to this conclusion, the Court overread Yee and under-read Cedar Point Nursery. It

erred to conclude that these cases compel the

conclusion that only a physical intrusion by a

stranger constitutes a taking under the Washington

or federal constitutions.

Background

In response to the COVID-19 pandemic, and

the ensuing economic and health crises it caused, the

Governor of Washington issued a proclamation “that

briefly suspended most residential evictions.

Proclamation 20-19.3. That moratorium was

extended and modified over the next year and a half

as the pandemic continued to spread.” Gonzales, 535

P.3d at 869. “While the specifics of the eviction

moratoriums shifted over time, generally speaking,

they prohibited residential landlords from initiating

or enforcing, and law enforcement from assisting in,

an eviction based on the failure to pay rent.” Id.

The moratorium by its express terms required

property owners to allow tenants to remain on the

property without the landlords’ consent regardless

of whether rent was paid or the tenant was violating

the terms under which the tenancy was established.

2 The question presented by Petitioners’ suit was

whether they had suffered a compensable taking

when the State of Washington had ordered them to

accept the continued physical occupation of their

property beyond the terms of the leases of their

tenants.

While the Court below was focused on evictions for nonpayment of rent, the terms of the Governor’s Proclamation were

not so limited. Tenants, of course, may normally lose their right

to occupy a rental unit for any number of reasons which violate

the terms of their leases, including non-payment of rent but also

including the expiration of the term of the lease, or violations of

the lease terms (such as occupancy limits or prohibitions on pets

or smoking indoors). The Proclamations at issue prohibited

eviction for anything except immediate and significant health

and safety violations, or when the owner herself was going to

move into the property. See Gonzales, 535 P.3d at 869, n.3, n.4.

II.

This Court’s Jurisprudence Requires

Compensation When Property Owners

Are Forced To Accept Continued,

Physical Occupation Of Their Property

By Governmental Action

In Cedar Point Nursery, this Court examined

its precedent related to per se takings. It concluded

that the Court’s “line of precedent is that

government authorized invasions of property—

whether by plane, boat, cable, or beachcomber—are

physical takings requiring just compensation.”

Cedar Point Nursery v. Hassid, 594 U.S. 139, 152

(2021) . Importantly, the physical taking need not be

by the government’s own agents. In Loretto v.

Teleprompter Manhattan CATV Corp., this Court

held that a government regulation which required

property owners to submit to the installation of cable

by cable companies constituted a per se taking. 458

U.S. 419, 423 (1982). In Nollan v. California Coastal

Commission,

this

Court

confirmed

that

governmental action which would require property

owners to allow public access across their property

would constitute a physical taking. 483 U.S. 825, 831

(1987).

The Court has also examined whether a rent

control ordinance might constitute a physical

taking. Yee v. City of Escondido, Cal. involved only a

physical-takings claim related to a rent control

ordinance. 503 U.S. 519, 523 (1992) . In that case,

this Court found that the physical taking argument

“fails at its base, however, because there has simply

been no compelled physical occupation giving rise to

a right to compensation that petitioners could have

forfeited. Had the city required such an occupation,

of course, petitioners would have a right to

compensation, and the city might then lack the

power to condition petitioners' ability to run mobile

home parks on their waiver of this right.” Id. at 532

(citing Nollan, 483 U. S., at 837). “The government

effects a physical taking only where it requires the

landowner to submit to the physical occupation of

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

Important to this Court in Yee was that “neither the

city nor the State compels petitioners, once they

have rented their property to tenants, to continue

doing so. To the contrary, the Mobilehome Residency

Law provides that a park owner who wishes to

change the use of his land may evict his tenants,

albeit with 6 or 12 months notice.” Id. at 527–28.

With the context of those cases, this Court

decided Cedar Point Nursery. This Court held that,

as in the cases listed above, “the government here

has appropriated a right of access to the growers’

property, allowing union organizers to traverse it at

will for three hours a day, 120 days a year. The

regulation appropriates a right to physically invade

the growers’ property—to literally ‘take access,’ as

the regulation provides.” 594 U.S. at 152.

III.

The Court Below Over-Read Yee And

Under-Read Cedar Point Nursery In

Concluding That A Physical Taking Only

Occurs With The Physical Intrusion Of A

Stranger Onto The Property

Despite this precedent, the Court below

explicitly limited the concept of a per se taking to

mean not only a physical intrusion, but a physical

intrusion by a stranger to the property. Gonzales,

535 P.3d at 873 (“Cedar Point concerned a statute

that allowed union organizers to come onto property

without the property owner’s permission. There has

been no similar intrusion here. The tenants are on

the landlords’ property with the landlords’

permission under a type of property arrangement

that preexists the state and federal constitutions”)

(citations omitted). It justified this conclusion by

stating “[t]his Court has consistently affirmed that

States have broad power to regulate housing

conditions in general and the landlord-tenant

relationship

particular

without

paying

compensation for all economic injuries that such

regulation entails.” Id. (quoting Yee, 503 U.S. at

528–29).

This holding is in error for two, related

reasons. First, nothing in the jurisprudence of the

Takings Clause (through which Article I, Section 16

of the Washington Constitution is read) relies on the

per se taking be a physical occupation by a person

who did not occupy the property before the

government action. Second, the idea that a previous

or even current license to occupy a property implies

a continuing license is fundamentally at odds with

our current understanding of property rights.

A Taking Occurs When Government

Action Causes The Physical Occupation

Of A Property

In reviewing regulations related to property,

as the Court below noted, it cannot be disputed that

states have some power to regulate property owner’s

rights. Gonzales, 535 P.3d at 873. Long gone (if it

was ever more than hyperbole) is Blackstone’s

thunderous declaration of property rights as the

“sole and despotic dominion which one man claims

and exercises over the external things of the world,

in total exclusion of the right of any other individual

in the universe.” 2 W. Blackstone, Commentaries on

the Laws of England 2 (1766). But the idea that a

property owner loses the right to exclude by inviting

another onto her property—the fundamental

holding of the Court below—is a misreading of both

Yee and Cedar Point Nursery. Both cases uphold a

right of property owners to exclude others from their

properties.

This Court has firmly 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.” Cedar Point

Nursery, 594 U.S. at 150 (cleaned up and citations

omitted). This Court has gone as far as to quote with

approval the statement that “the right to exclude [is]

the ‘sine qua non’ of property.” Id. (quoting Merrill,

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

730 (1998)). Nothing in either Cedar Point Nursery

or Yee indicates that the right to exclude is lost once

a property owner invites a person onto their

property, or that the Takings Clause only protects

against new (rather than continued) occupations of

land.

The Court below read Yee beyond its facts,

concluding that Yee supported the conclusion that

the government action here was mere regulation of

a pre-existing landlord tenant relationship, not an

“intrusion” constituting a taking. Gonzales, 535 P.3d

at 873. Yee involved a rent control ordinance; but

importantly, property owners retained the right to

sever the landlord-tenant relationship and evict

their tenants. 503 U.S. at 527–28. As this Court

stated, “[a] different case would be presented were

the statute, on its face or as applied, to compel a

landowner over objection to rent his property or to

refrain in perpetuity from terminating a tenancy.”

Id. at 528. This Court noted that the case presented

below is a “different case” than the one it examined

in Yee; the Washington Supreme Court, however,

missed the distinction and the clear indication by

this Court that a landlord being forced by

government action to continue a pre-existing

tenancy would constitute “[a] different case.”

The Court below made a similar error by

reading Cedar Point Nursery overly narrowly,

concluding that only entry by strangers onto a

property constituted a taking. Gonzales, 535 P.3d at

873. Notably, in Cedar Point Nursery the “right of

access” this Court found to be a taking was not

fundamentally about the rights of the union at all.

Instead, it was more properly about “selforganization rights of employees includ[ing] ‘the

right of access by union organizers to the premises

of an agricultural employer for the purpose of

meeting and talking with employees and soliciting

their support.’” 594 U.S. at 144 (emphasis added);

see id. at 163 (Kavenagh, J., concurring) (noting that

NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956)

involved “protecting employees’ rights of collective

bargaining under the [National Labor Relations]

Act”) (emphasis added). The purpose of the union

organizers entering onto the property was

fundamentally related to the workers already on the

property by the owners’ invitation (in a similar way

that a police officer may validly demand entry to a

rental unit in response to a 911 call by a tenant to

protect the tenant’s interest, but not his own). But

regardless of how the right of access was viewed in

that case, nothing about this Court’s decision in

Cedar Point Nursery indicates that a taking occurs

only if the physical entry onto a property is by

strangers to the property.

Neither Yee nor Cedar Point Nursery supports

the proposition, fundamental to the holding below,

that a physical intrusion is only a taking if the

intrusion was by a person never before allowed on

the property. The Court below therefore misread

both Yee and Cedar Point Nursery, undermining the

reasons for its holding.

A Past Invitation Onto A Property Does

Not Provide License For Indefinite

Future Occupation

Fundamentally, the question presented in this

case is why Petitioners’ tenants were physically

occupying Petitioner’s properties at the time of the

suit. Were the tenants occupying Petitioners’

properties because the property owners had

contracted for it, or because the government had

required it? It is beyond doubt that, at least in some

cases, the latter was true, and tenants whose lease

had expired, who were violating their leases, or who

were not paying rent were physically occupying

Petitioners’ properties solely because Respondents

had ordered it. See Gonzales, 535 P.3d at 869. The

Court below attempted to skirt around the

undeniable fact that tenants were continuing to

physically occupy Petitioners’ properties without

consent by holding that, at least at some point,

Petitioners had allowed this occupation. Id. at 873

(“The tenants are on the landlords’ property with the

landlords’ permission”). The use of the present tense

was legally and factually incorrect, and as noted

above, is of primary concern to Amicus IRPOA.

The reasoning is contrary to a reasonable

understanding of property law. A residential lease is

a limited license to occupy—and for the most part,

solely occupy 3—the property of another for a limited

time subject to specific, contractual terms.

The idea of a limited license to be physically

present on another’s property is ubiquitous in our

society; it is well understood in both public and

private property, by express license or implied, and

subject to varying amounts of discretion by the

property owner, whose interest the amicus

represents.

“If the invitee goes outside of the area of his

invitation, he becomes a trespasser or a licensee,

depending upon whether he goes there without the

consent of the possessor, or with such consent.”

Restatement (Second) of Torts § 332 cmt. l (1965).

Thus, a movie theatre invites patrons onto its

Generally, a tenant has a right to exclude others from the

property. See 4 Wayne R. LaFave, Search and Seizure: A Treatise

on the Fourth Amendment § 8.5(a), 208–19 (4th ed.2004).

property with an express license: A patron will be

required to leave the theatre following the single

movie for which they bought a ticket. Similarly, a

hotel rents out a room with an express checkout

time; the customer has full control of the room

during the period for which it is rented but has to

leave at the expiration of that time. A property

owner may in their discretion customarily exclude

an invitee who is disrupting other invitees, such as

a disruptive patron at an orchestra or a drunk

patron at a bar.

Even without an express license, however, the

concept is well-understood: No one would argue that

if a person throws a birthday party in their home

they have lost the right to exclude guests when the

party ends. The Restatement expresses a

fundamental concept related to property rights: An

invitation once extended does not create an

unlimited right of access, but is strictly related to the

express or implied invitation for access. See

Restatement (Second) of Torts § 332 cmt. l.

On the occasion an invitee or licensee violates

these limited licenses, it is generally considered a

tort without granting the violator any future rights.

Cedar Point Nursery, 594 U.S. at 159 (“Isolated

physical invasions, not undertaken pursuant to a

granted right of access, are properly assessed as

individual torts rather than appropriations of a

property right. This basic distinction is firmly

grounded in our precedent”). In that case this Court

went on to list numerous examples of the isolated

examples of governmental intrusions onto private

property which do not constitute a taking, such as

necessity or pursuant to a valid arrest or search

warrant. Id. at 160–61. None of these, of course,

grant any further access—a police officer entering a

property with a valid search warrant cannot then

enter and leave the property any other time he

pleases.

But by use of the present tense in the case

presented, the Court below construed the limited

license granted by a lease to be indefinite. Gonzales,

535 P.3d at 873 (“The tenants are on the landlords’

property with the landlords’ permission under a type

of property arrangement that preexists the state and

federal

constitutions”)

(emphasis

added).

Admittedly, the tenants were, at some point, “on

landlords’ property with the landlords’ permission”;

at the point where tenants violated the terms of the

lease (whether by expiration of the lease, nonpayment, or other violation), however, they were no

longer “on landlords’ property with the landlords’

permission.” At that point, tenants were on

landlords’ property solely by the operation of

governmental action.

The Washington Supreme Court elided a past

permissive occupation with a present adverse

occupation, setting a dangerous precedent for

property owners. The Court below offered no support

for this proposition, nor is there any. The tenants at

issue in the case presented continued their sole,

physical occupation of Petitioners’ properties only by

the Proclamations at issue in this case, and for that

reason, a per se taking had occurred. The Court

below erred to hold otherwise.

CONCLUSION

Amicus IRPOA certainly agrees that the

COVID-19 pandemic was a global crisis, which

required both the federal and state governments to

act to protect the health and well-being of their

citizens. The question presented to this Court, at its

root, is not whether a strong response to the

pandemic was warranted. It is, rather, whether

property owners like Petitioners (and the property

owners represented by IRPOA) should be forced to

shoulder that burden without compensation. This

was the conclusion of the Washington Supreme

Court, but this Court’s precedents dictate otherwise.

For these reasons, Amicus IRPOA respectfully

requests that the petition for writ of certiorari be

granted.

Respectfully submitted,