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

No. 23-935

IN THE

Supreme Court of the United States

GENE GONZALES AND SUSAN GONZALES, HORWATH FAMILY

TWO, LLC, AND THE WASHINGTON LANDLORD ASSN.,

PETITIONERS,

V.

GOVERNOR JAY INSLEE AND STATE OF WASHINGTON,

RESPONDENTS.

____________________

ON PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF WASHINGTON

___________________________

Amici Curiae Brief Of The

Small Property Owners of San Francisco Institute

And Owners’ Counsel of America

Supporting Petitioners

MICHAEL M. BERGER*

*COUNSEL OF RECORD

MANATT, PHELPS & PHILLIPS, LLP

Counsel for Amici Curiae

The Small Property Owners of San Francisco Institute

And Owners’ Counsel of America

2049 Century Park East, Suite 1700

Los Angeles, CA 90067

(310) 312-4185

mmberger@manatt.com

i

INTEREST OF THE AMICI CURIAE ................... 1

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

SUMMARY OF ARGUMENT ................................ 2

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

I.

II.

“The Political Ethics Reflected in the

Fifth Amendment Reject Confiscation

as a Measure of Justice”............................... 4

A.

A Complete Takeover of

Property Would Unarguably

be a Taking ........................................ 4

B.

A Compelled Transfer of

a Recognizable Interest in

Property is a Taking .......................... 7

C.

A Taking Occurs When

Government Commands A

Property Owner To Stand Aside

And Permit Physical

Occupation Of Property

By Another ......................................... 9

1.

The General Rule is That

Physical Occupation is a

Taking. .................................... 9

2.

Yee v. City of Escondido

Is Not Compatible With

Settled Law ........................... 11

Good Intentions Are Constitutionally

Irrelevant .................................................... 14

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

ii

TABLE OF AUTHORITIES

CASES

Andy Warhol Foundation for the Visual

Arts, Inc. v. Goldsmith,

143 S.Ct. 1258 (2023)........................................ 13

Arverne Bay Constr. Co. v. Thatcher,

15 N.E.2d 587 (N.Y. 1938) .................................. 6

Babbitt v. Youpee,

519 U.S. 234 (1997)........................................... 13

Berman v. Parker,

348 U.S. 26 (1954)........................................2, 3, 7

Cedar Point Nursery v. Hassid,

141 S.Ct. 2063 (2021)........................................ 13

City of Monterey v. Del Monte Dunes,

526 U.S. 687 (1999)21

Community Housing Improvement Program

v. City of New York,

59 F.4th 540 (2d Cir. 2023) ...............3, 12, 14, 17

Consolidated Rock Products Co. v. Du Bois,

312 U.S. 510 (1941)........................................... 13

Creppel v. United States,

41 F.3d. 627 (Fed. Cir. 1994) ............................ 20

Dames & Moore v. Regan,

453 U.S. 654 (1981)........................................... 19

Dolan v. City of Tigard,

512 U.S. 374 (1994)........................................... 13

F.C.C. v. Florida Power Corp.,

480 U.S. 245 (1987)........................................... 11

iii

TABLE OF AUTHORITIES

(continued)

First English Evangelical Lutheran Church

v. County of Los Angeles,

482 U.S. 304 (1987)..................................5, 16, 19

Florida Rock Indus., Inc. v. U.S.,

791 F.2d 893 (Fed. Cir. 1986) ........................... 21

Florida Rock Indus, Inc. v. United States,

18 F.3d 1560 (Fed. Cir. 1994) ......................15, 20

Hawaii Housing Authority v. Midkiff,

467 U.S. 229 (1984)......................................... 2, 7

Hodel v. Irving,

481 U.S. 704 (1987)....................................6, 9, 10

Horne v. Department of Agriculture,

576 U.S. 350 (2015)........................................... 13

Hughes v. Washington,

389 U.S. 290 (1967)........................................... 22

Hurley v. Kincaid,

285 U.S. 95 (1932)............................................. 19

In re Santiago-Monteverde,

24 N.Y.3d 283 (2014) .......................................... 3

Kaiser Aetna v. U.S.,

444 U.S. 164 (1979)...................... 9, 10, 11, 13, 18

Knick v. Township of Scott,

139 S. Ct. 2162 (2019)....................................... 14

Lingle v. Chevron USA, Inc.,

544 U.S. 528 (2005)........................................... 16

Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419 ..................... 9, 10, 11, 12, 13, 17, 18

iv

TABLE OF AUTHORITIES

(continued)

Nollan v. California Coastal Commn.,

483 U.S. 825 (1987).......... 9, 10, 11, 12, 18, 19, 22

Penn Central Transp. Co. v. City of New York,

438 U.S. 104 (1978)............................................. 9

Pennsylvania Coal Co. v. Mahon,

260 U.S. 393 .....................................15, 16, 17, 19

Preseault v. I.C.C.,

494 U.S. 1 (1990)............................................... 19

Pumpelly v. Green Bay Co.,

13 Wall. (80 U.S.) .............................................. 12

Regional Rail Reorganization Act Cases,

419 U.S. 102 (1974) .....................................19, 20

Ruckelshaus v. Monsanto Co.,

467 U.S. 986 (1984)........................8, 9, 10, 13, 19

Shelton v. Tucker,

364 U.S. 479 (1960)........................................... 22

Skaw v. United States,

740 F.2d 932 (Fed. Cir. 1984) ........................... 21

Stanley v. Illinois,

405 U.S. 645 (1972)........................................... 22

Stewart v. Abend,

495 U.S. 207 (1990)........................................... 13

United States v. Cors,

337 U.S. 325 (1949)............................................. 4

United States v. Security Indus. Bank,

459 U.S. 70 (1982)......................................... 9, 13

v

TABLE OF AUTHORITIES

(continued)

United States v. Causby,

328 U.S. 256 (1946)........................................... 12

United States v. Clarke,

445 U.S. 253 (1980)........................................... 21

United States v. General Motors Corp.,

323 U.S. 373 ...................................................... 13

United States v. Peewee Coal Co.,

341 U.S. 114 (1951)........................................... 16

Webb’s Fabulous Pharmacies, Inc. v.

Beckwith,

449 U.S. 155 (1980)............................................. 8

Whitney Benefits, Inc. v. United States,

926 F.2d 1169 (Fed. Cir. 1990) ....................20, 21

Williamson County Regional Planning

Commn. v. Hamilton Bank,

473 U.S. 172 (1985)........................................... 14

Winger v. Aires,

89 A.2d 521 (Pa. 1952) ........................................ 8

Yee v. City of Escondido,

503 U.S. 519 (1992)................................11, 12, 14

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952)........................................... 16

STATUTES

Internal Revenue Code § 501(c)(3) .......................... 1

vi

TABLE OF AUTHORITIES

(continued)

OTHER AUTHORITIES

Epstein, Richard A., The Unfinished Business

of Horne v. Department of Agriculture,

10 NYU J.L. & Liberty 734 (2016) ................... 14

Michelman, Frank, Property, Utility, and

Fairness: Comments on the Ethical

Foundations of “Just Compensation” Law,

80 Harv. L. Rev. 1165 (1967) .............................. 4

Tribe, Laurence, American Constitutional Law

(2d ed 1988) ....................................................... 11

1

INTEREST OF THE AMICI CURIAE

The Small Property Owners of San

Francisco Institute (“SPOSFI”) is a California

nonprofit corporation (Internal Revenue Code

§ 501(c)(3)) and organization of small property

owners that advocates for the rights of property

owners in San Francisco. SPOSFI’s members range

from young families to the elderly on fixed incomes,

and its membership cuts across all racial, ethnic,

and socio-economic strata. 1

SPOSFI is also involved in education, outreach

and research. Through education, it helps owners

better understand their rights and learn how to deal

with local government; through outreach to

community groups and to the public, it demonstrates

how restrictive regulations harm both tenants and

landlords, and through research projects, it aims to

separate hyperbole from fact on the effect of rent

control on housing stock. Through legal advocacy,

SPOSFI seeks to protect the rights of small property

owners against unfair and burdensome regulations.

SPOSFI has appeared as amicus curiae in this

Court in support of petitions seeking to protect the

rights of property owners.

Owners’ Counsel of America (“OCA”) is an

invitation-only national network of experienced

eminent domain and property rights attorneys. They

1 No counsel for any party has authored this brief in whole or

in part and no person other than the amicus has made any

monetary contribution to this brief’s preparation or

submission. The parties were timely notified.

2

joined together to advance, preserve, and defend the

rights of private property owners, and thereby

further the cause of liberty, because the right to own

and use property is “the guardian of every other

right,” and the basis of a free society. See James W.

Ely, The Guardian of Every Other Right: A

Constitutional History of Property Rights (3d ed.

2008). OCA is a 501(c)(6) organization sustained

solely by its members. Only one lawyer is admitted

from each state. OCA members and their firms have

been counsel for a party or amicus in many of the

property cases this Court has considered in the past

forty years and participated as amicus in the court

below. OCA members have also authored and edited

treatises, books, and articles on eminent domain,

property law, and property rights, including the

authoritative treatise on eminent domain law,

Nichols on Eminent Domain.

INTRODUCTION

Philosophical differences between landlords and

tenants are hardly new. Nor are they strangers to

this Court. However, the “solutions” now being

devised by some government agencies (sometimes by

states, sometimes by city councils, sometimes by

voter initiative measures voted in by the tenants

themselves) to perceived problems in the residential

rental setting have gone beyond this Court’s

consistent teachings about property takings.

Compulsory, uncompensated transfers of interests

in property are becoming commonplace. Particularly

in the rental context, this Court has seen a steady

flow of litigation.

3

This case provides the Court with the

opportunity to reexamine, revise, and enforce the

standards for Fifth Amendment takings evaluation

in the residential rental context. SPOSFI and OCA

pray that the Court take the opportunity and

rationalize this confused area of constitutional law.

SUMMARY OF ARGUMENT

Although this Court has permitted property and

wealth redistribution schemes in the past, it has

never done so unless the party whose property was

being taken was compensated. Indeed, the presence

of compensation has been the key to upholding such

schemes. Hawaii Housing Authority v. Midkiff, 467

U.S. 229 (1984); Berman v. Parker, 348 U.S. 26

(1954). As this Court put it in Berman, when

explaining why it was permitting a forced transfer

of property from one citizen to another through the

government's coercive eminent domain power:

“The rights of these property owners are

satisfied when they receive that just

compensation which the Fifth Amendment

exacts as the price of the taking.” 348 U.S.

at 36.

Below, the State focused on what it viewed as the

needs and problems of tenants in the Covid era.

Neither the members of SPOSFI and OCA nor, we

suspect, the petitioners we are supporting, are

unsympathetic to the problems of their tenants. The

members represented by SPOSFI, for example, are

not large, faceless, corporate bureaucracies out of

touch with the real world. Most of them are small

“mom and pop” operations.

4

Ends and means. As is so often true in

constitutional litigation, that’s what this case is

about.

The problem arises when simplistic solutions are

chosen for complex problems; when, in haste, onesided “cures” are devised. Here, the State precluded

landlords from reclaiming possession of any of their

units due to the Covid pandemic, allowing tenants to

remain in possession regardless of their rent

payment status or the ending of their leases. The

means chosen to provide this protection are now

before this Court. In other words, is it constitutional

to allow tenants to shelter in place during the

pandemic without paying rent or maintaining their

premises?

To meet perceived needs, the State has cast its

net too broadly. It has transferred palpable interests

in property from landlords to tenants. Without

compensation. That, the constitution forbids.

ARGUMENT

I

“THE POLITICAL ETHICS REFLECTED IN

THE FIFTH AMENDMENT REJECT

CONFISCATION AS A MEASURE OF

JUSTICE.” 2

It is hard to improve on this Court’s vintage

words. 3 However, what the Washington Supreme

2 United States v. Cors, 337 U.S. 325, 332 (1949).

3 Professor Michelman’s classic expansion on that thought is

worth noting, nonetheless: “any measure which society cannot

afford or, putting it another way, is unwilling to finance under

5

Court has approved is the precise opposite of this

Court’s simple and fair summary of the Just

Compensation Clause’s mandate.

A.

A Complete Takeover of Property

Would Unarguably be a Taking.

Perhaps, by contrast, a hypothetical can

illustrate the reality facing owners of apartment

buildings in Washington today.

Suppose that the State decided that a large set of

apartment buildings housed the State’s poorest

citizens and, to protect them from joining the ranks

of the homeless, the State decided to acquire all

those apartment buildings to maintain as lowincome housing. To accomplish that, the State

assembled the apartments’ owners and informed

them that the State was taking them over. A sort of

coup de apartments. In exchange for title to their

properties, the owners would receive contracts to

manage the new State-owned buildings and would

be paid a salary based on a percentage of the rent

collected. But the State would set the rent; the rental

rates would change only when the State decided

they could; funds for upkeep, insurance, and

maintenance would have to come from the rents

collected or money borrowed by the “managers,” as

the State would invest no money of its own; and the

conditions of full compensation, society cannot afford at all.”

Frank Michelman, Property, Utility, and Fairness: Comments

on the Ethical Foundations of “Just Compensation” Law,

80 Harv. L. Rev. 1165, 1181 (1967).

6

tenants could either remain in perpetuity or

designate their successors in interest.

Had the State actually commandeered title to the

properties and placed title in the State’s name, there

is no doubt that a Fifth Amendment violation would

have occurred. Property would have been taken for

public use without any compensation changing

hands. The acquisition of title would have made the

taking obvious.

As this Court explained:

“government action that works a taking of

property rights necessarily implicates the

‘constitutional obligation to pay just

compensation.’ [Citation.]” First English

Evangelical Lutheran Church v. County of

Los Angeles, 482 U.S. 304, 315 (1987);

emphasis added.

When legislation is enacted that takes property

with no intent to provide compensation, the

legislation is invalid. Hodel v. Irving, 481 U.S. 704

(1987). 4

How does the hijacking of title from the

apartment owners in the hypothetical differ from

what the Washington statute actually did to these

apartment owners? In only one meaningful way: In

the hypothetical, the owners would be relieved of the

4 The statute in Irving was intended to solve a problem caused

by intestate succession to miniscule Native American estates.

In the process, however, the property right of devise and

descent was taken from current owners without any intent to

pay for taking that “stick” from the bundle of rights. As a

result, this Court struck down the statute.

7

dubious honor of paying taxes on the property, as

they would no longer hold title to it. As the New York

Court of Appeals put it in its enduring exposition on

the difference between overt and covert confiscation:

“The only substantial difference, in

such case, between restriction and actual

taking, is that the restriction leaves the

owner subject to the burden of payment of

taxation, while outright confiscation

would relieve him of that burden.” Arverne

Bay Constr. Co. v. Thatcher, 15 N.E.2d

587, 592 (N.Y. 1938).

Aside from the taxation issue, the Washington

statute has stripped apartment owners of all useful

indicia of ownership. Hyperbolic as this may sound,

it is the reality. The stringent regulations have

reduced the ownership of an apartment building in

Washington to something akin to a public utility,

where all decisions are made by the government and

the titular owners of the properties have lost not

only control over what they can charge and who they

can rent to, but have been compelled to transfer

substantial property interests to their tenants with

no compensation whatever.

B.

A Compelled Transfer of a Recognizable

Interest in Property is a Taking.

As noted earlier, this Court approved Hawaii’s

plan for land reform and its use of the power of

eminent domain to accomplish the breakdown of a

feudal land tenure system (Hawaii Housing

Authority v. Midkiff) and also approved the concept

8

of urban redevelopment in the District of Columbia

and its use of the power of eminent domain to

assemble large tracts of land for resale to developers

who would redevelop decayed city cores (Berman v.

Parker).

In neither case, however, was there any doubt

that compensation was a key element in the

package. Indeed, the entire discussion in Midkiff

was directed at the “public use” aspect of the Fifth

Amendment because, as the unanimous opinion put

it, “we assume for purposes of these appeals that the

weighty demand of just compensation has been met

….” 467 U.S. at 245. Absent this Court’s ability to

make that crucial assumption, the land title reform

system which compelled the transfer of fee simple

title from landlords to tenants could not have passed

constitutional muster.

Nor is this surprising. The extent of the power of

eminent domain has been described in terms more

suited to breathless ingenues than judges:

“The power of eminent domain, next to

that of conscription of man power for war,

is the most awesome grant of power under

the law of the land.” Winger v. Aires,

89 A.2d 521, 522 (Pa. 1952).

When recognized property interests are

compulsorily transferred from a private citizen on

orders from the government, compensation is

mandated:

“This Court has stated that a sovereign

‘by ipse dixit, may not transform private

property into public property without

9

compensation …. This is the very kind of

thing that the Taking Clause of the Fifth

Amendment was meant to prevent.’”

Ruckelshaus v. Monsanto Co., 467 U.S.

986, 1012 (1984); quoting Webb’s Fabulous

Pharmacies, Inc. v. Beckwith, 449 U.S.

155, 161 (1980).

In the context at bar, there is no issue that such

a transfer has taken place. Wordplay alone stands

between these apartment building owners and the

property right which has been taken from them and

given to their tenants.

C.

A Taking Occurs When Government

Commands a Property Owner to Stand Aside

and Permit Physical Occupation of Property

by Another.

1.

The General Rule is

Occupation is a Taking.

That

Physical

The Washington scheme goes beyond mere

wealth transfer. It commands property owners to

permit permanent physical occupation of their

property by strangers.

Physical invasion has always been viewed by this

Court as a particularly obnoxious form of

governmental intrusion, one which can more readily

be seen as a Fifth Amendment violation. Cedar Point

Nursery v. Hassid, 141 S.Ct. 2063, 2072 (2021); Penn

Central Transp. Co. v. City of New York, 438 U.S.

104, 122 (1978); Loretto v. Teleprompter Manhattan

CATV Corp., 458 U.S. 419, 436.

10

“Property” consists of many things. Indeed, the

concept is so complex that this Court has repeatedly

used the bundle of sticks analogy to help illustrate

it, concluding that either the taking of an entire

“stick” from the “bundle” or the taking of a part of all

“sticks” in the “bundle” violates the Just

Compensation Clause of the Fifth Amendment. 5

One “stick” which has received special protection

from this Court has been the right of the property

owner to exclude others from his property. This

Court has repeatedly referred to the right to exclude

others as … one of the most essential” 6 and “most

treasured strands in an owner's bundle of property

rights.” 7

Moreover, the Court has been particularly

protective against governmental actions which

permit strangers to invade the property of others:

“This is not a case in which the

Government is exercising its regulatory

power in a manner that will cause an

5 E.g., Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979);

Loretto, 458 U.S. at 433, 435; United States v. Security Indus.

Bank, 459 U.S. 70, 76 (1982); Ruckelshaus, 467 U.S. at 1011;

Hodel, 481 U.S. at 716; Nollan v. California Coastal Commn.,

483 U.S. 825, 831 (1987). The “sticks” obviously affected here

are the right to exclude others from one’s property, the right to

possession of one’s property and, because of the wealth transfer

aspects of the ordinances, the right to alienate one’s property.

Kaiser Aetna, 444 U.S. at 176; Loretto, 458 U.S. at 433,

Ruckelshaus, 467 U.S. at 1011, Irving, 481 U.S. at 716; Nollan,

486 U.S. at 831.

6

7 Loretto, 458 U.S. at 435.

11

insubstantial devaluation of petitioners’

private property; rather, the imposition of

the navigable servitude in this context will

result in an actual physical invasion of the

privately owned marina.” Kaiser Aetna,

444 U.S. at 180; emphasis added; see also

Loretto, 458 U.S. at 436.

Like Kaiser Aetna, this case does not involve

“insubstantial devaluation” of property. The actual

physical transfer of interests effected by the statute

causes injury to the apartment owners which is

evident and substantial.

This Court later explained its rule as affording

protection to a property owner against “an interloper

with a government license.” FCC v. Florida Power

Corp., 480 U.S. 245, 253 (1987). 8 That analogy seems

apt here, where the Washington statute permits—

or, more properly, requires—a perpetual stream of

strangers to occupy the apartment units.

Coerced acceptance of physical invasion is

enough—by itself—under this Court’s precedents to

find a taking. However, the Washington intrusion

may be qualitatively worse than the others already

condemned by this Court. For here we are not

talking about boats on a waterway (Kaiser Aetna) or

strollers on a beach (Nollan) or wires in a building

(Loretto). Here, we are talking about living quarters.

The landlords have lost all ability to determine who

8 Or, as Professor Tribe colorfully expressed it, “government-

invited

gatecrashers.”

Laurence

Tribe,

Constitutional Law § 9-5 at 602 (2d ed 1988).

American

12

will live in their buildings. That control has shifted

to their tenants.

2.

Yee v. City of Escondido Is Not Compatible

With Settled Law.

The Washington Supreme Court thought that

Yee v. City of Escondido, 503 U.S. 519 (1992), a

mobile home rent control case, compelled its action.

That conclusion is in error. Yee was, in fact, an

aberration that ought to be recognized as such and

discarded.

Yee was based on two concepts that are

antithetical to this Court’s takings jurisprudence,

both past and present. First, it is based on the idea

that only coerced physical occupation offends the

Fifth Amendment and, second, it relies on the fact

that the regulation did not completely eliminate the

property owner’s interests. This Court’s cases are

contrary on both counts.

First, the Court’s physical takings jurisprudence

is not limited to coerced physical occupation. The

Court’s physical takings cases are based on facts on

the ground. In United States v. Causby, 328 U.S. 256

(1946), for example, the taking was caused by

overflights. In Pumpelly v. Green Bay Co., 13 Wall.

(80 U.S.) 166 (1872), the taking was caused by

unintended flooding. Nollan authorized casual

beach use. Although, to be sure, some physical

takings cases are based on coerced physical

occupation, e.g., Loretto, 458 U.S. 419, plainly all are

not. The question is whether there was a sufficient

physical invasion to compromise property rights.

13

Second, Yee found no taking because the owners

retained significant value. The courts below

magnified this holding by undermining the “bundle

of sticks or rights” concept that this Court has

consistently used. According to them, a physical

taking cannot occur unless government action takes

“the entire bundle” of rights. But that has never

been the test. This Court has viewed each of the

component sticks in the bundle as being property

protected by the Takings Clause. See, e.g., Kaiser

Aetna, 444 U.S., at 176, describing the right to

exclude as “one of the most essential sticks” in the

bundle (emphasis added); Dolan v. City of Tigard,

512 U.S. 374, 393 (1994) (same); United States v.

Security Indus. Bank, 459 U.S. at 76 (security

interest); United States v. General Motors Corp., 323

U.S. 373, 378 (1945) (rights “to possess, use and

dispose”); Consolidated Rock Products Co. v.

Du Bois, 312 U.S. 510, 528 (1941) (rights of

bondholders in bankruptcy); Babbitt v. Youpee, 519

U.S. 234, 242 (1997) (right of devise; “completely

demolish one of the sticks”) (emphasis added);

Loretto, 458 U.S. at 533 (“one of the most essential

sticks”) (emphasis added); Cedar Point Nursery v.

Hassid, 141 S.Ct. 2063, 2069 (2021) (“one of the most

important sticks”) (emphasis added); Ruckelshaus,

467 U.S. at 1011 (trade secret); Stewart v. Abend,

495 U.S. 207, 253 (1990) (right to prevent derivative

publication); Andy Warhol Foundation for the Visual

Arts, Inc. v. Goldsmith, 143 S.Ct. 1258, 1261 (2023)

(right to derivative works).

More recently, the Court concluded that

“preventing [property owners] from evicting tenants

who breach their leases intrudes on one of the most

14

fundamental elements of property ownership—the

right to exclude.” Alabama Assn. of Realtors v. Dept.

of Health & Human Svcs., 141 S.Ct. 2485, 2489

(2021).

If there were any doubt, the Court swept it away

in Horne v. Department of Agriculture, 576 U.S. 350,

362-63 (2015), where the Court held that leaving the

property owner with one stick out of the bundle is

not sufficient to avoid a taking: “Whether the

government may avoid the categorical duty to pay

just compensation for a physical taking of property

by reserving to the property owner a contingent

interest in a portion of the value of the property, set

at the government's discretion. The answer is no.”

Leaving property owners with one (or more) of the

sticks in the bundle they began with does not

immunize the government from takings liability. See

Richard A. Epstein, The Unfinished Business of

Horne v. Department of Agriculture, 10 N.Y.U.J.L. &

Liberty 734, 758-61 (2016).

In short, the underpinnings of Yee have been

done away with by more recent decisions, to the

extent they had validity in the first place.

In 2019, the Court did not shy away from

overruling another aberrant Takings Clause ruling

from that developing era in this field of the law, i.e.,

Williamson County Regional Planning Commission

v. Hamilton Bank, 473 U.S. 172 (1985), overruled in

Knick v. Township of Scott, 139 S. Ct. 2162 (2019).

Knick discarded Williamson County because it was

“not just wrong. Its reasoning was exceptionally ill

founded and conflicted with much of our takings

15

jurisprudence.” (Knick, 139 S.Ct. at 2178.) So, too,

with Yee.

II.

Good Intentions Are Constitutionally

Irrelevant.

This brief does not challenge the good intentions

of the Washington government to care for its

residents. The question, however, is should their

good intentions count for anything in this

constitutional analysis? In a word, no.

That the State professes to be seeking to do good

is beside the point. It proceeds as though recognition

of a legitimate governmental goal validates

whatever solution is chosen. And the Washington

Supreme Court bought into that. Not relevant.

Determination of a legitimate governmental

objective is the first, not the last, step. We

distinguish between means and ends, and the means

chosen to achieve the objective must survive

Constitutional scrutiny the same as the ends.

Good intentions are constitutionally irrelevant,

although they may be legally and morally necessary.

For the proper exercise of any governmental power,

the underpinning of such a beneficent purpose must

exist. That much was settled no later than 1922,

when this Court examined a statute designed to stop

land subsidence caused by underground coal mining

and concluded that the prerequisites for exercise of

both police power and eminent domain were present:

“We assume, of course, that the statute

was passed upon the conviction that an

exigency existed that would warrant it,

16

and we assume that an exigency exists

that would warrant the exercise of the

power of eminent domain. But the

question at bottom is upon whom the loss

of the changes desired should fall.” 9

More recent authority echoes that conclusion:

“the Takings Clause presupposes that the

government has acted pursuant to a valid public

purpose.” Lingle v. Chevron USA, Inc., 544 U.S. 528,

543 (2005) (emphasis added).

Once it is determined that the government action

is done to achieve a legitimate goal, then the means

chosen must be examined against the constitutional

matrix to ensure that private rights have not been

violated. Governmental power is not permitted to

run roughshod over the constitutionally protected

rights of individuals. That is what the Court was

talking about when it concluded in First English

that:

“many of the provisions of the Constitution

are designed to limit the flexibility and

9 Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416 (emphasis

added). See also Florida Rock Indus, Inc. v. United States, 18

F.3d 1560, 1571 (Fed. Cir. 1994): “It is necessary that the

Government act in a good cause, but it is not sufficient. The

takings clause already assumes the Government is acting in

the public interest ….” More than that, it assumes that the

Government is acting pursuant to lawful authority. If not, the

action is ultra vires and void. Compare Youngstown Sheet &

Tube Co. v. Sawyer, 343 U.S. 579 (1952) (unlawful wartime

seizure voided) with United States v. Peewee Coal Co., 341 U.S.

114 (1951) (compensation mandatory after lawful wartime

seizure).

17

freedom of governmental authorities and the

Just Compensation Clause of the Fifth

Amendment is one of them.” 482 U.S. at 321.

Pennsylvania Coal was merely one in a long line

of decisions in which this Court—speaking through

various voices along its ideological spectrum

(Pennsylvania Coal having been authored for the

Court by Justice Holmes)—patiently, and

consistently, explained to regulatory agencies that

the general legal propriety of their actions and the

need to pay compensation under the Fifth

Amendment present different questions, and the

need for the latter is not obviated by the virtue of the

former.

The Washington Supreme Court, however, seems

not to have gotten the message. Evidently believing

that the State was pursuing the public good by

allowing people to remain in their existing housing

during an emergency, that court upheld summary

judgment to the State. Demonstrating the error of

that theory, the dissenting opinion in Pennsylvania

Coal had argued the absolute position that a

“restriction imposed to protect the public health,

safety or morals from dangers threatened is not a

taking.” 10 Eight Justices rejected that proposition.

In Loretto, New York’s highest court upheld a

statute as a valid exercise of the police power, and

therefore dismissed an action seeking compensation

10 260 U.S. at 417 (Brandeis, J. [Holmes’ usual constitutional

soulmate], dissenting).

18

for a taking. This Court put it this way as it

reversed:

“The Court of Appeals determined that

§ 828 serves [a] legitimate public purpose …

and thus is within the State’s police power.

We have no reason to question that

determination. It is a separate question,

however, whether an otherwise valid

regulation so frustrates property rights that

compensation must be paid.” 11

Similarly, in Kaiser Aetna, the Corps of

Engineers decreed that a private marina be opened

to public use without compensation. This Court

disagreed, and explained the relationship between

justifiable regulatory actions and the just

compensation guarantee of the Fifth Amendment:

“In light of its expansive authority under the

Commerce Clause, there is no question but

that Congress could assure the public a free

right of access to the Hawaii Kai Marina if

it so chose. Whether a statute or regulation

that went so far amounted to a taking,

however, is an entirely separate question.” 12

Or, as the Court put it in Nollan:

“That is simply an expression of the

Commission’s belief that the public

interest will be served by a continuous

strip of publicly accessible beach along the

coast. The Commission may well be right

11 458 U.S. at 425 (Marshall, J.) (emphasis added).

12 444 U.S. at 174 (Rehnquist, J.) (emphasis added).

19

that it is a good idea, but that does not

establish that the Nollans (and other

coastal residents) alone can be compelled

to contribute to its realization. Rather,

California is free to advance its

‘comprehensive program,’ if it wishes, by

using its power of eminent domain for this

‘public purpose.’” 13

That is why the Court concluded in First English

that the Fifth Amendment was designed “to secure

compensation in the event of otherwise proper

interference amounting to a taking.” 14 This bedrock

principle of the law of constitutional remedies goes

back to the unanimous decision in Hurley v.

Kincaid, 15 where the Court held that the remedy for

a taking resulting from valid governmental action is

just compensation, not judicial second-guessing of

governmental policies and decisions through

disruptive injunctions. 16

In a similar vein are cases like Preseault v.

I.C.C., 17 Ruckelshaus v. Monsanto Co., 18 Dames &

13 483 U.S. at 841 (Scalia, J.).

14 482 U.S. at 315 (Rehnquist, C.J.) (first emphasis, the Court’s;

second emphasis added).

15 285 U.S. 95 (1932) (Brandeis, J.).

16 Justice Brandeis’ opinion for the Court in Hurley shows his

acceptance of the Court’s holding in Mahon that takings

require compensation. Justice Brandeis had been the lone

dissenter in the latter case, expressing the belief (abandoned

in Hurley) that valid regulation does not require compensation.

17 494 U.S. 1 (1990) (Brennan, J.).

18 467 U.S. 986 (1984) (Blackmun, J.).

20

Moore v. Regan, 19 and the Regional Rail

Reorganization Act Cases. 20 In each of them, the

Court was faced with the claim that Congress, in

pursuit of legitimate objectives, had taken private

property without just compensation. The goal in

each was plainly legitimate (respectively, the

creation of recreational trails over abandoned

railroad right-of-way easements, obtaining expert

input prior to licensing pesticides, dealing with the

issue of compensation in the aftermath of the

Iranian hostage crisis, and widespread railroad

bankruptcy). Nonetheless, the Court did not permit

those virtuous legislative goals to trump the

constitutional need for compensation when private

property was taken in the process. In each, the Court

directed the property owners to the Court of Federal

Claims 21 to determine whether these exercises of

legislative power, though substantively legitimate,

nonetheless required compensation. 22

19 453 U.S. 654 (1981) (Rehnquist, J.).

20 419 U.S. 102 (1974) (Brennan, J.).

21 When litigation is brought in that court, the Court of Appeals

for the Federal Circuit has consistently affirmed judgments

making the United States liable for takings that precluded

development in order to further proper environmental goals.

E.g., Whitney Benefits, Inc. v. United States, 926 F.2d 1169

(Fed. Cir. 1990) (surface coal mining); Florida Rock Indus., Inc.

v. United States, 18 F.3d 1560 (Fed. Cir. 1994) (limestone

mining); Creppel v. United States, 41 F.3d. 627 (Fed. Cir. 1994)

(dredging and filling wetlands).

To this end, the Fifth Amendment’s just compensation

guarantee has been held self-executing. The availability of

compensation validates and constitutionalizes the otherwise

wrongful government action. City of Monterey v. Del Monte

22

21

This consistent teaching probably explains why

the Court of Appeals for the Federal Circuit, the

body which hears all appeals from the Claims Court

(the court which adjudicates more takings cases

than any other because it is virtually the exclusive

forum for takings cases against the United States),

has had no trouble recognizing that the Just

Compensation Clause operates against proper

governmental action:

“In such cases the characteristic feature is

the defendant’s use of rightful …

regulatory rights to control and prevent

exercise of [private] ownership rights the

defendant is unwilling to purchase and

pay for.” 23

In sum, for a taking to occur, it matters not

whether the regulators acted in good or bad faith, or

for good or bad reasons. What matters is the impact

of their acts, not the purity vel non of their motives.

Indeed, if their motives are benign—or done for the

best of reasons—that only fortifies the need for

compensation required by the Just Compensation

Clause of the Fifth Amendment. 24

Dunes, 526 U.S. 687, 714-15 (1999) (Kennedy, J.); United

States v. Clarke, 445 U.S. 253, 257 (1980) (Rehnquist, J.).

23 Florida Rock Indus., Inc. v. U.S., 791 F.2d 893, 899 (Fed. Cir.

1986) (quoting with approval; emphasis the Court’s). See also

Whitney Benefits, 926 F.2d at 1177; Skaw v. United States, 740

F.2d 932, 939 (Fed. Cir. 1984).

24 See Hughes v. Washington, 389 U.S. 290, 298 (1967): “[T]he

Constitution measures a taking of property not by what a State

22

“[T]he Constitution recognizes higher

values than speed and efficiency. Indeed,

one might fairly say of the Bill of Rights in

general, and of the Due Process Clause in

particular, that they were designed to

protect the fragile values of a vulnerable

citizenry from the overbearing concern for

efficiency

and

efficacy

that

may

characterize praiseworthy government

officials no less, and perhaps more than

mediocre ones.” 25

Thus, it is not enough to conclude that it may be

a good thing to radically reorganize our system of

property ownership. As a matter of Constitutional

policy, severe invasions of protected property rights

cannot occur unless compensation is paid. Such

radical change cannot be accomplished with the

stroke of a word processor. If Washington believes

that the idea is otherwise worthwhile then, as this

Court put it in Nollan, “it must pay for it.” 483 U.S.

at 842.

says, or by what it intends, but by what it does.” (Stewart, J.,

concurring) (emphasis original).

Stanley v. Illinois, 405 U.S. 645, 656 (1972) (footnote

omitted). See also Shelton v. Tucker, 364 U.S. 479, 488 (1960).

25

23

CONCLUSION

Certiorari should be granted.

Respectfully Submitted,

MICHAEL M. BERGER*

*COUNSEL OF RECORD

MANATT, PHELPS & PHILLIPS, LLP

2049 Century Park East, Suite 1700

Los Angeles, CA 90067

(310) 312-4000

mmberger@manatt.com

Counsel for Amici Curiae

The Small Property Owners

of San Francisco Institute

and Owners’ Counsel of America