Amicus Curiae Brief — Mount Clemens Recreational Bowl, Inc., et al., Petitioners v. Elizabeth Hertel, Director, Michigan Department of Health and Human Services, et al.

Nos. 24-754, 24-757

In the

Supreme Court of the United States

MOUNT CLEMENS RECREATIONAL BOWL, INC., et al.,

Petitioners,

v.

ELIZABETH HERTEL, DIRECTOR,

MICHIGAN DEPARTMENT OF HEALTH

AND HUMAN SERVICES, et al.,

Respondents.

THE GYM 24/7 FITNESS, LLC,

Petitioner,

v.

MICHIGAN,

Respondent.

On Petitions for Writs of Certiorari to the

Court of A ppeals of Michigan

RENTAL HOUSING ASSOCIATION OF

WASHINGTON AMICUS BRIEF

IN SUPPORT OF PETITIONERS

Philip A. Talmadge

Counsel of Record

Talmadge/Fitzpatrick

2775 Harbor Avenue, SW

Third Floor, Suite C

Seattle, WA 98126

(206) 574-6661

phil@tal-fitzlaw.com

Attorneys for Amicus Curiae

Rental Housing Association

of Washington

335970

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

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

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

B. INTRODUCTION AND SUMMARY OF

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

C. ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

(1) Michigan’s Covid Proclamations Take

the Petitioners Property under the

Fifth/Fourteenth Amendments . . . . . . . . . . 5

(2) Application of Regulatory Takings

Analysis in the Ninth Circuit . . . . . . . . . . . 10

(3) Washington State’s Eviction Moratoria

Resulted in Devastating Real World

Consequences for RHA Landlord

Members and Landlords Generally . . . . . . 13

D. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

ii

TABLE OF CITED AUTHORITIES

Page

Cases

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

Human Servs.,

594 U.S. 758 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Almota Farmers Elevator & Warehouse Co. v.

United States,

409 U.S. 470 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Arkansas Game & Fish Comm’n v. United States,

568 U.S. 23 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 10

Armstrong v. United States,

364 U.S. 40 (1960) . . . . . . . . . . . . . . . . . . . . . . . . . 5, 8, 9

Bridge Aina Le’a LLC v. Hawaii Land Use

Comm’n,

950 F.3d 610 (9th Cir. 2020), cert. denied,

141 S. Ct. 731 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Bridge Aina Le’a, LLC v. Hawaii Land Use

Comm’n,

141 S. Ct. 731 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Cary v. Mason Cnty.,

173 Wn.2d 697 P.3d 194 (2012) . . . . . . . . . . . . . . . . . . . 2

Cedar Point Nursery v. Hassid,

594 U.S. 139 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

iii

Cited Authorities

Page

Cedar Point Nursery v. Shiroma,

923 F.3d 524 (9th Cir. 2019) . . . . . . . . . . . . . . . . . . . . 12

Cienega Gardens v. United States,

331 F.3d 1319 (Fed. Cir. 2003) . . . . . . . . . . . . . . . . . . . 9

City of Pasco v. Shaw,

161 Wn.2d 450, 166 P.3d 1157 (2007) . . . . . . . . . . . . . . 2

Duncan v. Bonta,

19 F.4th 1087 (9th Cir. 2021),

142 S. Ct. 2895 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . 12

El Papel, LLC v. City of Seattle,

2023 WL 7040314 (9th Cir. 2023), cert. denied,

144 S. Ct. 827 (2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Faciszewski v. Brown,

187 Wn.2d 308, 386 P.3d 711 (2016) . . . . . . . . . . . . . . . 2

First English Evangelical Lutheran Church of

Glendale v. Los Angeles County, Cal.,

482 U.S. 304 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . 8, 10

Gonzalez v. Inlsee,

2 Wn.3d 280, 535 P.3d 864 (2023), cert. denied,

144 S. Ct. 2685 (2024) . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Guggenheim v. City of Goleta,

638 F.3d 1111 (9th Cir. 2010), cert. denied,

563 U.S. 988 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

iv

Cited Authorities

Page

Jevons v. Inslee,

2023 WL 5031498 (9th Cir. 2023), cert. denied,

144 S. Ct. 500 (2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Laurel Park Community LLC v. City of Tumwater,

698 F.3d 1180 (9th Cir. 2012) . . . . . . . . . . . . . . . . . . . 11

Lingle v. Chevron USA., Inc.,

544 U.S. 528 (2005) . . . . . . . . . . . . . . . 5, 6, 9, 10, 11, 13

Loretto v. Teleprompter Manhattan CATV Corp.,

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

Lucas v. South Carolina Coastal Council,

505 U.S. 1003 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

MHC Financing Ltd. P’ship v. City of San Rafael,

714 F.3d 1118 (9th Cir. 2013), cert. denied,

571 U.S. 1125 (2014) . . . . . . . . . . . . . . . . . . . . . . . 11, 12

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

438 U.S. 104 (1978) . . . . . . . . . . . . . . . 4, 6, 7, 10, 11, 13

Pennsylvania Coal Co. v. Mahon,

260 U.S. 393 (1922) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

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

357 F.2d 988 (Ct. Cl. 1966) . . . . . . . . . . . . . . . . . . . . . . 8

Rancho de Calistoga v. City of Calistoga,

800 F.3d 1083 (9th Cir. 2015) . . . . . . . . . . . . . . . . . . . 12

v

Cited Authorities

Page

Roman Catholic Diocese of Brooklyn v. Cuomo,

592 U.S. 14 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Rose Acre Farms, Inc. v. United States,

373 F.3d 1177 (Fed. Cir. 2004), cert. denied,

559 U.S. 935 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Ruckelshaus v. Monsanto Co.,

467 U.S. 986 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Segura v. Cabrera,

184 Wn.2d 587, 362 P.3d 1278 (2015) . . . . . . . . . . . . . . 2

Tahoe-Sierra Pres. Council v. Regional

Planning Agency,

535 U.S. 302 (2002) . . . . . . . . . . . . . . . . . . . 6, 10, 11, 13

The Gym 24/7 Fitness v. Michigan,

10 N.W.3d 443 (Mich. 2024) . . . . . . . . . . . . . . . . . . . . . 4

United States v. General Motors Corp.,

323 U.S. 373 (1945) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Yim v. City of Seattle,

63 F.4th 783 (9th Cir. 2023) . . . . . . . . . . . . . . . . . . . . . 2

Yim v. City of Seattle,

194 Wn.2d 651, 451 P.3d 675 (2019) . . . . . . . . . . . . . . . 2

vi

Cited Authorities

Page

Constitutional Provisions

U.S. Const. amend. V . . . . . . . . . . . . . . . . . . . 3, 5, 6, 10, 15

U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . . 3, 5, 10, 15

Statutes, Rules and Other Authorities

Sup. Ct. R. 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Sup. Ct. R. 37.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Jevons v. Inslee, No. 23-490, Br. of Amicus

Curiae GRE Downtowner LLC in Support

of Petitioners, https://www.supremecourt.

gov/DocketPDF/23/23-490/292269/202312050

93516355_23-490%20GRE%20Amicus%20

Brief%20Final.pdf . . . . . . . . . . . . . . . . . . . . . . . . .13, 15

Scott Lincicome, The CDC Eviction Moratorium:

An Epic Case Study in Very Bad Policy,

CATO Institute (Sept. 18, 2020) https://

w w w.cato.org /commentar y/cdc- ev ictionmoratorium-epic-case-study-very-bad-policy . . . . . 14

1

A. INTEREST OF AMICUS CURIAE1

Amicus curiae Rental Housing Association of

Washington (“RHA”) is a 5,000 plus member non-profit

organization of rental housing owners (single family

homes to multi-family communities) in Washington

State. Its objectives are to oversee the general welfare

of Washington’s rental housing industry, lead advocacy

efforts, provide continuous development of skills and

knowledge for its members, and assist members to provide

appropriate services to the renting public.

RHA represents the interests of rental housing

owners to state and local legislative bodies, news media,

and the general public. RHA is actively involved in

the Washington Legislature and local governments on

any legislation affecting landlords. Its staff studies the

regular meeting agendas of the local governments, meets

with city and county council members, and reports to its

board about any issues which affect the local community.

It is also involved in educating and encouraging member

involvement on issues affecting the rental housing industry.

RHA offers educational programs which enhance rental

property owners’ knowledge and provides different fora

for knowledge sharing and social interaction. RHA also

offers products and services that rental property owners

need to be successful, while encouraging the highest

standards of ethics and integrity for its members. RHA

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.

Notice was given to the parties as required by SCR 37.2 on

February 5, 2025

2

promotes the value of the rental housing industry to the

community and educates renters about the process of

becoming a tenant and being a good tenant.

RHA, or its predecessor, has also appeared as an

amicus curiae in numerous federal and Washington

cases. 2

RHA’s members were directly impacted by the State

of Washington’s (“State”) eviction moratoria discussed in

Jevons v. Inslee, 2023 WL 5031498 (9th Cir. 2023), cert.

denied, 144 S. Ct. 500 (2023); El Papel, LLC v. City of

Seattle, 2023 WL 7040314 (9th Cir. 2023), cert. denied, 144

S. Ct. 827 (2024), and Gonzalez v. Inlsee, 2 Wn.3d 280, 535

P.3d 864 (2023), cert. denied, 144 S. Ct. 2685 (2024), just as

were the petitioners by the Michigan Covid-19 (“Covid”)

proclamation. The Washington eviction moratoria

deprived landlords like RHA’s members of any viable

means of evicting tenants who failed to pay rent or held

over in violation of the terms of a tenancy. Tenants simply

stopped paying rent. By government fiat, Washington

landlords were required to bear the brunt of the public

policy for the Covid pandemic’s effect on housing. Those

landlords were not fully compensated by local, state, and

federal public programs for their attendant losses.

2. See, e.g., Gonzalez v. Inslee, (Supreme Ct. No. 23-935); El

Papel, LLC v. City of Seattle (Supreme Ct. No. 23-807); Yim v. City

of Seattle, 63 F.4th 783 (9th Cir. 2023); Yim v. City of Seattle, 194

Wn.2d 651, 451 P.3d 675 (2019); Faciszewski v. Brown, 187 Wn.2d

308, 386 P.3d 711 (2016); Segura v. Cabrera, 184 Wn.2d 587, 362

P.3d 1278 (2015); Cary v. Mason Cnty., 173 Wn.2d 697, 272 P.3d 194

(2012); City of Pasco v. Shaw, 161 Wn.2d 450, 166 P.3d 1157 (2007).

3

Whether a regulatory taking of business owners’

property occurred in Michigan is relevant to RHA’s

members now and in connection with possible future

situations governments deem to be crises. This Court’s

regulatory takings principles do not provide clear

guideposts for their understanding by parties affected

by governmental actions or for their application by the

bench and the bar. This case merits review by this Court.

B. I N T R O D U C T I O N A N D S U M M A RY O F

ARGUMENT

RHA concurs with petitioners that this Court’s

regulatory takings precedents are seemingly at odds and

provide a confusing standard that is difficult to apply in

the real world.

Covid-related proclamations like Michigan’s, 3 though

temporary in duration, may still effect a regulatory taking

of property under the Fifth/Fourteenth Amendment.

RHA’s members and landlords across Washington,

for example, as will be noted infra, were precluded by

gubernatorial proclamation from evicting tenants or from

taking usual steps to address failure to pay rent such as

late fees or using deposits to cover unpaid rent even when

a tenant chose to leave the tenancy.

3. That the Covid pandemic was an emergency does not

alter the standard of the Fifth/Fourteenth Amendments’ takings

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

373, 382 (1945) (temporary taking during to assist with war effort

constituted a compensable taking); Roman Catholic Diocese of

Brooklyn v. Cuomo, 592 U.S. 14, 19 (2020) (per curium) (“[E]ven in

a pandemic, the Constitution cannot be put away and forgotten.”).

4

But the petition filed in this case has implications

beyond Covid. Governments take actions in situations

that they deem to be a crises that impact private property

rights. The principles for analyzing regulation takings

should be clear for governments proposing to take

such actions, as well as property owners. Moreover, the

principles for such regulatory takings must be clear and

specific in order for the courts to apply them.

Amicus RHA agrees with and adopts the arguments

presented by petitioners in this matter, but it further

highlights the real world impact this Court’s regulatory

takings precedents have for private property owners,

including RHA’s members. Review is warranted.

C. ARGUMENT

The petitioners’ petition for writ of certiorari

articulates why this case meets the criteria for review in

Rule 10. In particular, the Michigan courts’ decision in

this case is at odds with this Court’s regulatory takings

jurisprudence. The eloquent plea of the Michigan Supreme

Court justices who dissented from that court’s decision

to deny review in The Gym 24/7 Fitness v. Michigan, 10

N.W.3d 443 (Mich. 2024), is particularly apt in noting that

courts struggle as they attempt to apply Penn Central

Transp. Co. v. City of New York, 438 U.S. 104 (1978),

particularly in light of the lack of guidance from this Court

on the proper application of the Penn Central factors. Id.

at 447-52.

By denying the petitioners just compensation for

bearing the burden of Michigan’s social policy relating

to the Covid pandemic, the Michigan courts’ decisions

5

conflicted squarely with this Court’s determination

that “the Fifth Amendment’s guarantee that private

property shall not be taken for a public use without just

compensation 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.” Armstrong v. United States, 364 U.S. 40, 49

(1960). Lingle v. Chevron USA., Inc., 544 U.S. 528, 537

(2005) (“Government [cannot force] some people alone

to bear public burdens which, in all fairness and justice,

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

compensation).

RHA will not repeat all of the legal arguments

advanced by petitioners, but will discuss how Circuit

Courts like the Ninth Circuit have struggled to apply this

Court’s regulatory taking jurisprudence consistently, and

it will discuss the real world impacts of the regulatory

taking here.

(1) Michiga n’s Cov id Proclamations Ta ke

the Petitioners Property under the Fifth/

Fourteenth Amendments

The Takings Clause of the Fifth Amendment of

the United States Constitution, applicable to the states

through the Fourteenth Amendment, provides that

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

just compensation.” U.S. Const. Amend. V.4 The clause

4. “Just compensation” requires that the property owner

be put in the same position monetarily that he or she would have

occupied had the property not been taken. See, e.g., Almota

Farmers Elevator & Warehouse Co. v. United States, 409 U.S.

470, 473-74 (1973).

6

prohibits “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.” Penn. Central,

438 U.S. at 123.

Classically, a Fifth Amendment taking occurs: (1)

where the government requires the owner to suffer a

permanent physical invasion, Loretto v. Teleprompter

Manhattan CATV Corp., 458 U.S. 419 (1982); or (2)

where a regulation completely deprives an owner of all

economically beneficial use of the property, Lucas v. South

Carolina Coastal Council, 505 U.S. 1003, 1016 (1992). But

where an onerous regulation “goes too far,” a taking is

present because it is the functional equivalent of a direct

appropriation. Pennsylvania Coal Co. v. Mahon, 260 U.S.

393 (1922).

After Penn Central, Tahoe-Sierra Pres. Council v.

Regional Planning Agency, 535 U.S. 302 (2002), and

Lingle, an ordinance goes “too far” where the economic

impact of the regulation on the property owner is

onerous, the regulation has interfered with the property

owner’s distinct investment-backed expectations, and

the character of the governmental action is such that

it is tantamount to a physical invasion of the owner’s

property. A more frequently applied iteration of this last

factor considers whether the challenged regulation places

a high burden on a few private property owners that

should more fairly be apportioned more broadly among

taxpayers or property owners generally. But these tenets

of a regulatory taking are difficult to apply in practice, as

petitioners document.

7

Under the economic impact factor of the Penn Central

test, petitioners need only demonstrate a loss of value that

may be less than 100 percent, but high enough to have

“go[ne] too far.” Penn Central, 438 U.S. at 124. They need

not assign a specific dollar amount to their constitutional

deprivations at this stage of the case because they are not

proving their damages, only the constitutional harm. But

that standard is amorphous, to say the least.

Under the second Penn Central factor, the reasonable

investor-backed expectations, the petitioners’ expectations

must be “reasonable . . . [and] must be more than a

unilateral expectation or an abstract need.” Ruckelshaus

v. Monsanto Co., 467 U.S. 986, 1005-06 (1984) (quotation

omitted). This factor limits takings claims to those who

can “demonstrate that they bought their property in

reliance on a state of affairs that did not include the

challenged regulatory regime.” Rose Acre Farms, Inc. v.

United States, 373 F.3d 1177, 1190 (Fed. Cir. 2004), cert.

denied, 559 U.S. 935 (2010) (quotation omitted).

While the existence of some regulation may be

understood by an investor, a jurisdiction’s enactment of

wildly more onerous regulatory restrictions on the use

of property can hardly be predicted by such investors.

Some regulation is simply unlike regulations that are the

functional equivalent of a physical taking.

Finally, under the third Penn Central factor relating

to the character of the government action, this Court must

assess what Michigan did and how it affected property

rights: a government cannot impose the burdens of a

societal policy upon a select few. This standard seems

to invite courts to weigh the degree of the need, or

8

the emergency, that prompted the government to act,

in derogation of the property owners’ rights. Almost

invariably, the apparent need for government action will

outweigh the countervailing rights of the property owner.

Even if temporary in duration, this Court has

repeatedly held that a taking can occur. This Court has

“confirm[ed] that takings temporary in duration can

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

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

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

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

law of federal eminent domain” and require payment of

just compensation during time the government effected

a taking temporarily) (past taking occurred for which

compensation must be paid when federal engineers

temporarily entered plaintiffs land to construct flood

control measures). Such takings “are not different in

kind from permanent takings, for which the Constitution

clearly requires compensation,” because the loss imposed

on a property owner by a temporary taking “may be great

indeed.” First English Evangelical Lutheran Church of

Glendale v. Los Angeles County, Cal., 482 U.S. 304, 319

(1987).

Here, Michigan, like Washington, as will be discussed

infra, placed the economic burden of Covid solely on

the shoulders of the petitioners. Michigan singled out

businesses to address Covid. This runs afoul of one of the

primary policy concerns animating takings jurisprudence,

namely the notion that the Takings Clause “bar[s]

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.” Armstrong, 364 U.S.

9

at 49; Lingle, 544 U.S. at 537. Singling out a small class to

bear a societal burden “is the kind of expense-shifting to

a few persons that amounts to a taking.” Cienega Gardens

v. United States, 331 F.3d 1319, 1338-39 (Fed. Cir. 2003).

In Cienega Gardens, two federal statutes abrogated

property developers’ contractual rights to prepay their

forty-year mortgage loans after twenty years. The

developers were effectively prevented from exiting the

low-rent housing programs in which they were required

to participate while carrying the loans. The statutes led

to a 96 percent loss of return on equity for the developers.

The Federal Circuit found that the government’s action

placed the expense of low-income housing on a few

private property owners, instead of distributing the

expense among all taxpayers in the form of incentives

for developers to construct more low-rent apartments.

Id. at 1338-39. Like the government in Cienega Gardens,

Michigan improperly singled out the petitioners to bear

the societal burden of addressing the pandemic’s burden

on society.

Michigan’s proclamations required that the State’s

Covid policy falls on the shoulders of businesses. If the

policy was as beneficial for the public as Michigan claims,

then it should fall on all citizens alike. Only businesses

bear obligations similar to those imposed on the petitioner

owners here. Nor does Michigan tax its citizens to bear the

true cost of its social policy addressing Covid’s impacts.

Whatever the rationale for Michigan’s proclamations, it

is clear businesses are being asked to shoulder more than

their share of the societal burden of providing affordable

housing.

10

Weighing all of the Penn Central/Lingle factors

together, Michigan’s Covid proclamations caused

substantial economic hardship to the petitioners and

interfered with their investment-backed expectations.

The ordinances singled them out and forced them to

bear a burden that should fairly be borne by society as a

whole. The proclamations went “too far” and amounted

to a regulatory taking under the Fifth and Fourteenth

Amendments.

Notwithstanding the foregoing, if, as the Michigan

courts concluded, the fact that the regulatory taking was

of a short duration (as the Tahoe-Sierra court apparently

condoned, despite this Court’s decisions in Cedar Point

Nursery v. Hassid, 594 U.S. 139, 153 (2021), Arkansas

Game & Fish Comm’n, supra, and First English

Evangelical Lutheran Church, supra, as to temporary

takings), almost any situation that a government deems

to be a crisis is temporally limited so that a regulatory

taking will never occur.

For the reasons the petitioners have articulated, this

Court needs to provide practical, coherent guidelines for

the existence of a regulatory taking. See Bridge Aina

Le’a, LLC v. Hawaii Land Use Comm’n, 141 S. Ct. 731,

732 (2021) (Thomas, J. dissent from denial of certiorari)

(rejecting “know it when you see it” standard for

regulatory takings).

(2) Application of Regulatory Takings Analysis

in the Ninth Circuit

To illustrate the confusing standards for regulatory

takings and how they play out in the courts, this Court

11

need look no further than to the regulatory takings

jurisprudence of the Ninth Circuit, the Circuit with which

RHA and its members are most familiar. That Circuit has

rarely, if ever, found a regulatory taking in its decisions

over the last decade or so.

But more pointedly apt for this Court’s review

decision, the Ninth Circuit has not produced a clear

delineation of what constitutes a regulatory taking in

light of Penn Central/Tahoe-Sierra/Lingle. This results

in a lack of coherent standards for district courts as

well. Consequently, what may be legitimate regulatory

takings cases go unlitigated, and property rights are left

unprotected.

Beginning with Guggenheim v. City of Goleta, 638

F.3d 1111 (9th Cir. 2010), cert. denied, 563 U.S. 988 (2011)

a split en banc decision, the court rejected a regulatory

taking applying the Penn Central protocol5 in a case

involving a municipality’s severe restrictions on mobile

home park rents. This case was followed by a series of

mobile home park cases in which regulatory takings were

rejected. See Laurel Park Community LLC v. City of

Tumwater, 698 F.3d 1180 (9th Cir. 2012) (no regulatory

taking under Penn Central where a municipality enacted

ordinances that effectively barred property owners from

using their property for anything but mobile home parks);

MHC Financing Ltd. P’ship v. City of San Rafael, 714

5. The Guggenheim court recognized that Lingle made the

three Penn Central elements factors in the taking analysis, rather

than a set formula. 638 F.3d at 1120. This analysis only make the

test for a regulatory taking ever the more “mushy.” The en banc

court did not even assess all three Penn Central factors, limiting

its analysis to the element of investment-backed expectations.

12

F.3d 1118 (9th Cir. 2013), cert. denied, 571 U.S. 1125 (2014)

(no regulatory taking where the city enacted rent controls

on mobile home parks that severely limited rents). Rancho

de Calistoga v. City of Calistoga, 800 F.3d 1083 (9th Cir.

2015) (no regulatory taking despite diminution in park

value from mobile home rent control ordinance).

The Ninth Circuit has rejected regulatory takings

outside the mobile home park rent control setting as well.

In Cedar Point Nursery v. Shiroma, 923 F.3d 524 (9th

Cir. 2019), later reversed by this Court, the Ninth Circuit

declined to find a regulatory taking where a California

regulation allowed union organizers access to worksites

of agricultural employers because the issue was not

preserved for review, id. at 534, but the court noted the

temporary duration of any access was not the equivalent

of a permanent physical taking.

In Bridge Aina Le’a LLC v. Hawaii Land Use

Comm’n, 950 F.3d 610 (9th Cir. 2020), cert. denied, 141

S. Ct. 731 (2021), the court rejected a regulatory taking

where the commission altered land use for 1060 acres on

the island of Hawaii from conditional urban agriculture.

In Duncan v. Bonta, 19 F.4th 1087 (9th Cir. 2021), a case

this Court later vacated, 142 S. Ct. 2895 (2022), the court

rejected a regulatory taking in a case where a California

statute prohibited gun owners’ possession of largecapacity ammunition magazines.

From this short recitation of the regulatory takings

precedents of a single Circuit Court of Appeals, it is

readily apparent that in applying this Court’s protocol

for regulatory takings, there are no clearly lineated

principles for a regulatory taking to guide lower courts;

13

it is virtually impossible to establish a case, even when the

government’s regulations are pervasive and result in the

functional equivalent of physical taking. This Court did

not envision such a stringent standard in Penn Central/

Tahoe-Sierra/Lingle. The very imprecision of the three

Penn Central elements forestalls a regulatory taking.

(3) Washing ton State’s Eviction Moratoria

R e s u lt e d i n D e v a s t at i n g R e a l Wo rld

Consequences for RHA Landlord Members

and Landlords Generally

Another example of just how broadly governmental

proclamations can sweep may be seen in Washington

State’s eviction moratoria proclamations that were issued

in response to the Covid pandemic. Those proclamations

intruded upon RHA members’ property rights. It is

difficult to envision a regulatory action by government that

had more profound impacts on property rights. The real

world effect of Washington State’s eviction moratoria was

that tenants refused to pay rent and often held over on the

premises long past the legal termination of the tenancies.

Government programs, local, state and federal did not

fully compensate landlords for their massive financial

losses. This includes enormous financial strain on those

that provide housing for low-income tenants. See Jevons v.

Inslee, No. 23-490, Br. of Amicus Curiae GRE Downtowner

LLC in Support of Petitioners, https://www.supremecourt.

gov/DocketPDF/23/23-490/292269/20231205093516355_

23- 490%20GRE%20A micus%20Brief%20Final.pdf,

(Seattle housing provider documenting $1,270,757 in

unpaid rent in 2022, up more than tenfold from recent

years and paling in comparison to the rental assistance

received from the State in the same year). Reimbursement

14

programs did not make property owners, like RHA’s

members, whole.

This financial strain was borne not just by large,

sophisticated housing providers. It is well-documented

that “about 20 million of the country’s 48 million rental

units are owned and managed by individual” property

owners, not corporations. Scott Lincicome, The CDC

Eviction Moratorium: An Epic Case Study in Very Bad

Policy, CATO Institute (Sept. 18, 2020) https://www.cato.

org/commentary/cdc-eviction-moratorium-epic-casestudy-very-bad-policy.

RHA member landlords were forced to suffer tenants

occupying their land despite material breaches of their

leases. More critically, landowners were forced to “assume

the financial distress” of their renters, without adequate

compensation from the government. Lincicome, supra.

While this may be a legitimate social policy during a

time of crisis, that policy fell squarely on the backs of

only one segment of Washington society – not taxpayers

generally, not property owners generally, not tenants,

only landlords.

In striking down the CDC’s federal eviction moratorium

as an unconstitutional exercise of federal power, this Court

explained the inequitable burden such moratoria place on

one subset of citizens – residential lessors:

The moratorium has put the applicants, along

with millions of landlords across the country,

at risk of irreparable harm by depriving them

of rent payments with no guarantee of eventual

recovery. Despite the CDC’s determination that

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landlords should bear a significant financial cost

of the pandemic, many landlords have modest

means. And preventing them from evicting

tenants who breach their leases intrudes

on one of the most fundamental elements of

property ownership – the right to exclude

. . . It is indisputable that the public has a

strong interest in combating the spread of the

COVID-19 Delta variant. But our system does

not permit agencies to act unlawfully even in

pursuit of desirable ends.

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

Servs., 594 U.S. 758, 765-766 (2021). A social policy to

prevent homelessness due to a situation like a pandemic

may be necessary, but appropriating private property for

that public purpose, without providing just compensation

as required by the Fifth Amendment, is “unlawful[].” Id.

at 766.

The courts’ response to the challenges to Washington’s

eviction-related actions was to find the challenge mooted

by the end of the crisis. See Jevons, supra. Here, again

the temporal duration of the taking resulted in denial of

any protection under the Fifth/Fourteenth Amendments

to private property rights. Washington State, in effect,

commandeered residential landlords, by executive action,

to provide housing to its citizens.

D. CONCLUSION

The freewheeling use of governmental authority in

times of what are deemed to be crises that adversely

impact private property rights is not going away, even

16

as the public fears about Covid ebb. A myriad of other

crises from public health to storms or fires, just to name

a few, will confront governments in the years ahead. This

Court’s protocol for regulatory takings needs to be clear

when governments promulgate regulations that impact

private property rights. It is not. This Court’s review is

appropriate in this case.

For the reasons set forth by petitioners and fully

supported herein by RHA, this Court should grant review.

DATED this 13th day of February 2025.

Respectfully submitted,

Philip A. Talmadge

Counsel of Record

Talmadge/Fitzpatrick

2775 Harbor Avenue, SW

Third Floor, Suite C

Seattle, WA 98126

(206) 574-6661

phil@tal-fitzlaw.com

Attorneys for Amicus Curiae

Rental Housing Association

of Washington