Jevons et al v. Inslee et al, No. 1:2020cv03182 - Document 60 (E.D. Wash. 2021)

Court Description: ORDER GRANTING 30 DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DENYING 22 PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT. File is CLOSED. Signed by Chief Judge Stanley A Bastian. (SG, Case Administrator)

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Jevons et al v. Inslee et al Doc. 60 Case 1:20-cv-03182-SAB ECF No. 60 filed 09/21/21 PageID.2045 Page 1 of 42 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON Sep 21, 2021 SEAN F. MCAVOY, CLERK 4 Sep 21, 2021 5 SEAN F. MCAVOY, CLERK 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 ENRIQUE JEVONS, as managing member 10 of Jevons Properties LLC; JEVONS No. 1:20-CV-3182-SAB 11 PROPERTIES LLC; FREYA K. 12 BURGSTALLER, as trustee of the Freya ORDER GRANTING 13 K. Burgstaller Revocable Trust; JAY DEFENDANTS’ MOTION FOR 14 GLENN; and KENDRA GLENN, SUMMARY JUDGMENT AND 15 Plaintiffs, DENYING PLAINTIFFS’ 16 v. MOTION FOR SUMMARY 17 JAY INSLEE, in his official capacity as JUDGMENT 18 the Governor of the State of Washington; 19 and ROBERT FERGUSON, in his official 20 capacity of the Attorney General of the 21 State of Washington, 22 Defendants. 23 24 Before the Court are the parties’ cross-Motions for Summary Judgment. 25 ECF Nos. 22, 30. The Court heard oral argument on the motions on August 24, 26 2021 by videoconference. Richard Stephens appeared by video on behalf of 27 Plaintiffs Enrique Jevons; Jevons Properties, LLC; Freya K. Burgstaller; Jay 28 Glenn; and Kendra Glenn. Cristina Sepe and Brian Rowe appeared by video on ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT . . . * 1 Dockets.Justia.com Case 1:20-cv-03182-SAB ECF No. 60 filed 09/21/21 PageID.2046 Page 2 of 42 1 behalf of Defendants Washington State Governor Jay Inslee and Washington State 2 Attorney General Robert Ferguson. This action concerns several constitutional challenges to Washington’s 3 4 eviction moratorium enacted in response to the COVID-19 pandemic. To mitigate 5 the spread of COVID-19 and prevent exacerbation of homelessness in the state, 6 Washington State Governor Jay Inslee issued Proclamation 20-19 on March 18, 7 2020. The Proclamation and subsequent revisions established a moratorium on 8 evictions, among other protective health and safety measures. That eviction 9 moratorium persists—although under new conditions for when landlords and 10 property managers may pursue evictions and enforcement of rental debt—through 11 the Governor’s “Bridge Proclamation.” After reviewing the parties’ briefing, oral argument, and the applicable 12 13 caselaw, the Court denied Plaintiffs’ Motion for Summary Judgment and granted 14 Defendants’ Cross-Motion for Summary Judgment at the hearing. Upon reaching 15 the merits of Plaintiffs’ arguments, the Court held that Washington’s eviction 16 moratorium does not violate the Takings Clause, Contracts Clause, or Due Process 17 Clause of the United States Constitution. This Order memorializes the Court’s 18 ruling. I. 19 Facts1 A. The COVID-19 Outbreak and Washington’s Eviction Moratorium 20 On February 29, 2020, Washington State Governor Jay Inslee issued 21 22 Proclamation 20-05, declaring a state of emergency in Washington from the 23 outbreak of novel coronavirus SARS-CoV-2. The SARS-CoV-2 virus causes 24 coronavirus disease 2019 (“COVID-19”), a highly contagious and potentially fatal 25 respiratory tract infection. The virus spreads primarily through close interactions 26 27 1 The following facts are taken from the parties’ respective statements of material 28 facts and responses thereto. See ECF Nos. 23, 31, 38, 41. ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT . . . * 2 Case 1:20-cv-03182-SAB ECF No. 60 filed 09/21/21 PageID.2047 Page 3 of 42 1 via respiratory droplets, and there is a lag of several days before the onset of 2 symptoms. Seniors and persons with preexisting medical conditions are most 3 vulnerable to complications and death from COVID-19, and statistics indicate that 4 people of color disproportionately contract and experience severe COVID-19 5 health outcomes. Without a vaccine or highly effective treatment for COVID-19 at 6 the time of the outbreak, reducing person-to-person contact through community 7 mitigation measures was the most effective way of combatting transmission and 8 ensuring Washington’s healthcare system was not overwhelmed. Accordingly, 9 Governor Inslee ordered Washingtonians to stay home except for participation in 10 essential activities and businesses. 11 The Governor’s Office also recognized that the COVID-19 pandemic would 12 significantly reduce economic output and income, making many tenants unable to 13 afford rent from the outset of the pandemic. Prior to the outbreak, the state was 14 facing a homelessness and housing instability crisis. Between 2013 and 2017, over 15 130,000 adults in Washington faced an eviction, and by 2018, homelessness in the 16 state reached Great Recession levels. Without countermeasures, the Governor’s 17 Office anticipated that the COVID-19 pandemic’s economic dislocations would 18 result in mass evictions, exacerbating housing instability and homelessness in the 19 state. A rise in evictions, and the lifting of the eviction moratoria generally, are 20 associated with an increase in COVID-19 infections and deaths. Projections 21 performed by the University of Washington Institute for Health Metrics and 22 Evaluation indicated that mass evictions could have resulted in between 18,235 to 23 59,008 more eviction-attributable COVID-19 cases, 1,172 to 5,623 more 24 hospitalizations, and 191 to 621 more deaths in the state. Even under lockdown 25 scenarios, containment of COVID-19 was slower and less effective at reducing the 26 size of the pandemic when evictions were allowed to continue. 27 The Washington State Department of Health (“DOH”) was particularly 28 concerned with outbreaks of COVID-19 among persons experiencing housing ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT . . . * 3 Case 1:20-cv-03182-SAB ECF No. 60 filed 09/21/21 PageID.2048 Page 4 of 42 1 insecurity and homelessness. As of April 25, 2021, the DOH identified 202 2 COVID-19 outbreaks in homeless services or shelters. People experiencing 3 homelessness are typically at increased risk of acquiring COVID-19 due to 4 crowded living situations. Housing insecure families may find themselves in 5 shared living conditions, which have been found to increase contact with people 6 and make compliance with public health guidance difficult. People experiencing 7 homelessness are also at an increased risk for severe COVID-19, due to a higher 8 rate of underlying medical conditions and co-morbidities. 9 For the foregoing reasons, Governor Inslee signed Proclamation 20-19 on 10 March 18, 2020, establishing a temporary moratorium on evictions in Washington. 11 The Governor issued subsequent proclamations on April 16, 2020 (Proclamation 12 20-19.1), June 2, 2020 (Proclamation 20-19.2), July 24, 2020 (Proclamation 2013 19.3), October 14, 2020 (Proclamation 20.19-4), December 31, 2020 (Proclamation 14 20-19.5), and March 18, 2021 (Proclamation 20-19.6), refining the moratorium and 15 other health and safety measures with each revision. While broadly prohibiting the 16 commencement of eviction proceedings, the proclamations did not forgive any 17 debt of unpaid rent and stressed that tenants “who are not materially affected by 18 COVID-19 should and must continue to pay rent.” Proc. 20-19.6, ¶ 7. The 19 Governor’s public messaging has also expressly stated that tenants should pay rent 20 if able and should communicate with landlords. Beginning with Proclamation 2021 19.1, the moratoria also prohibited attempts to collect any such unpaid rent through 22 withholding of the tenant’s security deposit. E.g., Proc. 20-19.1, ¶ 26. Plaintiffs in 23 this action primarily challenged the last rendition of the moratorium, Proclamation 24 20-19.6. Proclamation 20-19.6 ended by its own terms on June 30, 2021, and by 25 operation of subsequent legislation, which is discussed in the following section. Id. 26 at ¶ 26. The eviction moratorium and attendant provisions are still in effect through 27 a Bridge Proclamation, however, which is effective until September 30, 2021. 28 ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT . . . * 4 Case 1:20-cv-03182-SAB 1 ECF No. 60 filed 09/21/21 PageID.2049 Page 5 of 42 Following input from property owners, beginning with Proclamation 29- 2 19.1, the Governor’s Office permitted landlords to treat unpaid rent as an 3 enforceable debt during the state of emergency, provided that the tenant was 4 offered, but refused, a reasonable payment plan based on the financial, health, or 5 other circumstances of the tenant. The exception expressly placed the burden of 6 proof to enforce rental debt on landlords and property managers. This decision was 7 made because, in many cases, tenants in genuine economic distress due to the 8 pandemic were unable to provide adequate proof of their distress. The Governor’s 9 Office reasoned that many tenants have informal employment or non-traditional 10 sources of income and that, for these tenants, proving distress is not as simple as 11 submitting a copy of a termination letter from an employer. A tenant who does not 12 lose their job could be facing pandemic-related economic or health distress 13 anyway, such as the burden of caring for family members who lost their jobs or 14 being unable to provide for themselves. The revised moratorium thus placed the 15 burden of proof on landlords and property managers based on the state’s belief that 16 not all tenants in need of protection were able to submit a declaration of hardship. 17 Overall, during the COVID-19 public health crisis, over 1.6 million 18 Washingtonians have filed unemployment claims, and the state’s unemployment 19 rate has exceeded its Great Recession peak. Through the first four months of 2021, 20 over 265,000 new unemployment claims were filed, demonstrating that the job 21 crisis persisted over a year after COVID-19 emerged. Recent census survey data 22 reported that 10.7% of renters in Washington (160,342 people) were behind on 23 their rent, and 17.8% of renters (265,342 people) in Washington reported having 24 little or no confidence in their ability to pay rent. An analysis by the Aspen 25 Institute found that 649,000 to 789,000 people in Washington—up to 10.3% of the 26 state’s entire population—would be at risk of eviction without the state’s eviction 27 moratorium. During the pandemic, at least 18,000 more Washingtonians have 28 relied on cash assistance and 160,000 more on food assistance. The Court also ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT . . . * 5 Case 1:20-cv-03182-SAB ECF No. 60 filed 09/21/21 PageID.2050 Page 6 of 42 1 notes that the Eastern District of Washington, which encompasses most of the 2 state’s landmass, faces unique and ongoing challenges from the COVID-19 3 pandemic. Vaccinations in eastern Washington have lagged behind the rest of the 4 state for numerous reasons, including misinformation and lack of accessibility.2 B. Senate Bill 5160 and the Housing Stability “Bridge” Proclamation 5 In April 2021, Senate Bill 5160 (“SB 5160”) was adopted by the 6 7 Washington Legislature and signed into law by Governor Inslee. Engrossed 8 Second Substitute S.B. 5160, 67th Leg., Reg. Sess. (Wash. 2021), enacted as 2021 9 Wash. Sess. Laws, ch. 115. The legislation provides tenants certain protections 10 during and after the public health emergency. Sections 7 and 8 of SB 5160 11 established an eviction resolution pilot program for nonpayment of rent and a right 12 to legal representation in eviction cases, respectively. Section 7 also authorized 13 landlord access to certain rental assistance programs. While SB 5160 became 14 effective on April 22, 2021, localities are still working to implement the rental 15 assistance and eviction resolution pilot programs in their jurisdictions. In Yakima 16 County, where Plaintiffs are located, both programs are fully operational. Due to the delay in implementation, Governor Inslee issued a housing 17 18 stability “bridge” proclamation on June 29, 2021, which was intended to “bridge 19 the operational gap between the eviction moratorium enacted by prior 20 21 2 Annette Cary, Tri-Citians Slower Than Others to Get the COVID Vaccine. 22 What’s the Holdup?, TRI-CITY HERALD (Apr. 14, 2021 07:43 P.M.), 23 https://www.tri-cityherald.com/news/coronavirus/article250299784.html (last 24 accessed Sept. 20, 2021); Danny Westneat, The Political Vaccine Divide in 25 Washington State Is Widening—And COVID Rushes In, THE SEATTLE TIMES (May 26 2, 2021, 1:17 P.M.), https://www.seattletimes.com/seattle-news/politics/the27 political-vaccine-divide-in-washington-state-is-widening-and-covid-rushes-in/ (last 28 accessed Sept. 20, 2021). ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT . . . * 6 Case 1:20-cv-03182-SAB ECF No. 60 filed 09/21/21 PageID.2051 Page 7 of 42 1 proclamations and the protections and programs subsequently enacted by the 2 Legislature.” Proc. 21-09, ¶ 23. With respect to COVID-19-related rent that 3 accrued from February 29, 2020, the Bridge Proclamation continues to prohibit 4 eviction proceedings based in part on unpaid rent if the landlord has “no attempt” 5 to establish a “reasonable repayment plan” with a tenant, as defined by SB 5160, or 6 the landlord and tenant cannot agree on a plan and no local eviction resolution pilot 7 program exists per SB 5160. Id. at ¶ 31. Further, before a landlord may pursue 8 eviction proceedings, a tenant must be provided with, and must reject or fail to 9 respond within 14 days of receipt of, a notice of an opportunity to participate in the 10 rental assistance program and eviction resolution pilot programs established by 11 SB 5160. The programs must be operational at the time the notice is sent. Id.; ¶ 25. 12 C. Plaintiffs in This Action 13 Plaintiffs in this action are landlords and property managers in Yakima, 14 Washington. Plaintiff Enrique Jevons is the managing member of Jevons 15 Properties, LLC, an entity that owns and rents several hundred residential 16 properties and also manages rental units for other real property owners. At the time 17 of Plaintiffs’ filing, Jevons Properties, LLC had 171 tenants who were not current 18 with their rent. The total amount of rent owed and unpaid to the entity, as of April 19 2021, was $266,509.98. 20 Plaintiff Freya K. Burgstaller is the trustee of the Freya K. Burgstaller 21 Revocable Trust. The Trust owns twelve residential properties in Yakima. In 22 March 2020, Ms. Burgstaller attempted to evict a tenant who had stopped paying 23 rent and created enough noise in her unit that a neighboring tenant complained. 24 During the eviction process, the eviction moratorium came into effect and the 25 proceedings were halted. Since then, Ms. Burgstaller has been unable to pursue 26 eviction and the tenant has remained on the property, despite noise complaints. 27 Plaintiffs Jay and Kendra Glenn are owners of forty-six residential rental 28 properties in Yakima. Most of the Glenns’s rental units are lower-cost units, which ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT . . . * 7 Case 1:20-cv-03182-SAB ECF No. 60 filed 09/21/21 PageID.2052 Page 8 of 42 1 cost approximately $650 and $750 per month. The average market rate for a one2 bedroom unit in Yakima for fiscal year 2020 was $769. The total amount due to 3 the Glenns from nonpaying tenants, at the time of filing, was $99,728. The demand for rental housing in Yakima is high, in part from a shortage of 4 5 rental properties. Throughout the moratorium, Plaintiffs have remained subject to 6 state and local property taxes, in addition to paying utilities, mortgages, and 7 maintaining and repairing their rental properties. In the personal experience of 8 several Plaintiffs, tenants are hesitant to provide financial information or details 9 regarding their health to their landlords, making it difficult to establish reasonable 10 payment plans for individual tenants. Plaintiffs have not availed themselves of the 11 SB 5160 programs now operational in Yakima County. II. 12 Procedural History Plaintiffs filed the above-captioned lawsuit against Defendants on October 13 14 29, 2020, ECF No. 1, and a subsequent Amended Complaint on May 3, 2021, 15 alleging that Washington’s eviction moratorium violated provisions of the 16 Washington State Constitution and United States Constitution, ECF No 27. They 17 claimed the moratorium offends the Contracts Clause of the U.S. Constitution; 18 Takings Clause of the Fifth Amendment to the U.S. Constitution; Takings Clause 19 of the Washington State Constitution; and Due Process Clause of the Fourteenth 20 Amendment to the U.S. Constitution. Id. Defendants filed an Answer to the 21 Amended Complaint denying all claims on May 11, 2021. ECF No. 29. Plaintiffs filed their Motion for Summary Judgment on April 30, 2021. ECF 22 23 No. 22. Defendants filed their Cross-Motion for Summary Judgment on May 21, 24 2021. ECF No. 30. The parties also submitted supplemental briefing on the impact 25 of Cedar Park Nursery v. Hassid, ___ U.S. ___, 141 S.Ct. 2063 (2021). ECF Nos. 26 48, 52, 55, 60. The Court heard oral argument on the motions by videoconference 27 on August 24, 2021. 28 // ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT . . . * 8 Case 1:20-cv-03182-SAB ECF No. 60 III. 1 filed 09/21/21 PageID.2053 Page 9 of 42 Legal Standard Summary judgment is appropriate “if the movant shows that there is no 2 3 genuine dispute as to any material fact and the movant is entitled to judgment as a 4 matter of law.” Fed. R. Civ. P. 56(a). There is no genuine issue for trial unless 5 there is sufficient evidence favoring the non-moving party for a jury to return a 6 verdict in that party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 7 (1986). The moving party has the initial burden of showing the absence of a 8 genuine issue of fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). 9 If the moving party meets its initial burden, the non-moving party must go beyond 10 the pleadings and “set forth specific facts showing that there is a genuine issue for 11 trial.” Anderson, 477 U.S. at 248. In addition to showing there are no questions of material fact, the moving 12 13 party must also show it is entitled to judgment as a matter of law. Smith v. Univ. of 14 Wash. Law Sch., 233 F.3d 1188, 1193 (9th Cir. 2000). The moving party is entitled 15 to judgment as a matter of law when the non-moving party fails to make a 16 sufficient showing on an essential element of a claim on which the non-moving 17 party has the burden of proof. Celotex Corp., 477 U.S. at 323. The non-moving 18 party cannot rely on conclusory allegations alone to create an issue of material fact. 19 Hansen v. United States, 7 F.3d 137, 138 (9th Cir. 1993). When considering a motion for summary judgment, a court may neither 20 21 weigh the evidence nor assess credibility; instead, “the evidence of the non-movant 22 is to be believed, and all justifiable inferences are to be drawn in his favor.” 23 Anderson, 477 U.S. at 255. Where, as here, parties submit cross-motions for 24 summary judgment, ‘[e]ach motion must be considered on its own merits.’” Fair 25 Hous. Council of Riverside Cty., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th 26 Cir. 2001). Accordingly, it is the district court’s duty to “review each cross-motion 27 separately . . . and review the evidence submitted in support of each cross-motion.” 28 Id. ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT . . . * 9 Case 1:20-cv-03182-SAB IV. 1 2 ECF No. 60 filed 09/21/21 PageID.2054 Page 10 of 42 Discussion The Court finds, and the parties appear to agree, that no material disputes of 3 fact preclude summary judgment in this matter. The Court thus turns to the merits 4 of the parties’ arguments. 5 A. Jurisdiction 6 1. Whether Plaintiffs’ Claims are Moot 7 Defendants argue that the Court lacks jurisdiction to consider Plaintiffs’ 8 claims in this action because they are mooted by cessation of Proclamation 209 19.6, which formally ended on June 30, 2021. Defendants also formerly contended 10 that Plaintiffs lacked Article III standing because their purported injuries were not 11 traceable to the Washington eviction moratorium, as opposed to the federal 12 eviction moratorium. 13 In contrast, Plaintiffs contend that their claims are not moot because the state 14 eviction moratorium continues—albeit under different conditions—through the 15 Governor’s Bridge Proclamation. The heart of their argument is that, because “the 16 inability to treat rent as an enforceable debt for the time period of the [moratorium] 17 continues,” so does their injury and the controversy in this action. ECF No. 37 at 18 11. With respect to Defendants’ standing claim, Plaintiffs previously argued that 19 their injury was directly traceable to Washington’s eviction moratorium because 20 the state moratorium was more restrictive than its federal counterpart. 21 22 a. Legal Standard A case becomes moot “‘when the issues presented are no longer ‘live’ or the 23 parties lack a legally cognizable interest in the outcome.’” Already, LLC v. Nike, 24 Inc., 568 U.S. 85, 91 (2013) (quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982)). 25 A party asserting mootness “bears the heavy burden of establishing that there 26 remains no effective relief a court can provide.” Bayer v. Neiman Marcus Grp., 27 Inc., 861 F.3d 853, 862 (9th Cir. 2017). “‘The question is not whether the precise 28 relief sought at the time the case was filed is still available,’ but ‘whether there can ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT . . . * 10 Case 1:20-cv-03182-SAB ECF No. 60 filed 09/21/21 PageID.2055 Page 11 of 42 1 be any effective relief.’” Id. (quoting McCormack v. Herzog, 788 F.3d 1017, 1024 2 (9th Cir. 2015)). Standing and mootness are similar doctrines in some respects: 3 “Both require some sort of interest in the case, and both go to whether there is a 4 case or controversy under Article III.” Jackson v. Calif. Dep’t of Mental Health, 5 399 F.3d 1069, 1072 (9th Cir. 2005); United States v. Sanchez-Gomez, ___ U.S. 6 ___, 138 S.Ct. 1532, 1537 (2018) (“A case that becomes moot at any point during 7 the proceedings is ‘no longer a “Case” or “Controversy” for purposes of Article 8 III,’ and is outside the jurisdiction of the federal courts.”). 9 10 b. Discussion In this case, Plaintiffs’ claims are not moot. The Bridge Proclamation, which 11 is operational until September 30, 2021, represents a continuation of several 12 provisions that Plaintiffs allege are unconstitutional. Under the Bridge 13 Proclamation, eviction proceedings based in part on rent that accrued from 14 February 29, 2020 are prohibited until the SB 5160 rental assistance and eviction 15 resolution pilot programs are operational and a landlord has attempted to establish 16 a reasonable repayment plan with a tenant. Proc. 21-09, ¶¶ 25, 42–45 The tenant 17 must also be given notice of the opportunity to participate in the programs prior to 18 eviction. Id. at ¶ 25. Further, for rent accruing on August 1, 2021 through 19 September 30, 2021, the Bridge Proclamation prohibits Plaintiffs from seeking 20 eviction unless they have presented a reasonable repayment plan to a tenant and 21 none of the following are applicable: a tenant (1) has made full payment of rent; 22 (2) has made partial payment of rent based on their individual economic 23 circumstances, as negotiated with the landlord; (3) has a pending application for 24 rental assistance; or (4) resides in a jurisdiction in which the rental assistance 25 program is anticipating receipt of additional resources but has not yet started their 26 program or the program is not yet accepting new applications for assistance. Id. at 27 ¶ 35. The Bridge Proclamation also continues to limit permissible uses of security 28 deposits until landlords and tenants have the opportunity to resolve nonpayment ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT . . . * 11 Case 1:20-cv-03182-SAB ECF No. 60 filed 09/21/21 PageID.2056 Page 12 of 42 1 through the SB 5160 programs, and it continues to prohibit the leveraging of fees 2 for late rent payment during the period of the emergency (from February 29, 2020 3 to September 30, 2021). Id. at ¶¶ 34, 39. 4 These limitations speak to the heart of Plaintiffs’ claims that the moratorium 5 violates their property rights, contractual rights, and due process rights. Although 6 the Bridge Proclamation extends the state eviction moratorium under different 7 conditions, the transition did not moot Plaintiffs’ claims. The precise relief sought 8 by Plaintiffs is different at this juncture, but the Court could still fashion effective 9 relief with respect to the Bridge Proclamation. See Bayer, 861 F.3d at 862. Because 10 the Bridge Proclamation extends several actions challenged by Plaintiffs as 11 unconstitutional, the Court is unable to find that Plaintiffs’ claims are moot by 12 cessation of Proclamation 20-19.6. Plaintiffs have demonstrated that their claims 13 are not moot, and the Court has jurisdiction to consider them. 14 In addition, since the parties filed briefs in this matter, the federal eviction 15 moratorium ended pursuant to the U.S. Supreme Court’s decision to vacate a stay 16 of enforcement in Ala. Ass’n of Realtors v. Dep’t of Health and Human Servs., 594 17 U.S. ____, 141 S.Ct. 2320 (2021). Because the federal eviction moratorium is 18 inoperative, it cannot be the source of Plaintiffs’ injuries in this case and 19 Defendants’ argument that Plaintiffs lack standing is unpersuasive. For this reason, 20 Plaintiffs’ purported injury is traceable to the state eviction moratorium and 21 Plaintiffs have standing. 22 23 24 2. Whether Plaintiffs’ Claims Against the Governor are Barred by the Eleventh Amendment Defendants maintain that the doctrine of sovereign immunity acts as a 25 jurisdictional bar to Plaintiffs’ claims against Washington State Governor Jay 26 Inslee. They contend that Governor Inslee does not have a “fairly direct” 27 connection to enforcement of the eviction moratorium. In contrast, Plaintiffs argue 28 that Governor Inslee’s enforcement connection is sufficiently direct to overcome ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT . . . * 12 Case 1:20-cv-03182-SAB ECF No. 60 filed 09/21/21 PageID.2057 Page 13 of 42 1 sovereign immunity, in part because the Washington State Constitution expressly 2 provides that the governor “shall see that the laws are faithfully executed.” Wash. 3 Const. art. III, § 5. 4 a. Legal Standard 5 The Eleventh Amendment to the U.S. Constitution acts as a jurisdictional 6 bar to lawsuits brought by private citizens against state governments absent the 7 state’s consent. U.S. Const. amend. XI; Seminole Tribe of Fla. v. Florida, 517 U.S. 8 44, 73 (1996); Sofamor Danek Grp., Inc. v. Brown, 124 F.3d 1179, 1183 (9th Cir. 9 1997). In the seminal case Ex Parte Young, 209 U.S. 123 (1908), the U.S. Supreme 10 Court permitted an action for prospective injunctive relief against state officials 11 who had a proven connection to enforcing the challenged under the legal “fiction” 12 that a suit against the individual was not a suit against the state. Idaho v. Coeur 13 d’Alene Tribe of Idaho, 521 U.S. 261, 269–270 (1997) (citing Pennhurst State Sch. 14 and Hosp. v. Halderman, 465 U.S. 89, 114, n.25 (1984)). To overcome the 15 protections of sovereign immunity to sue a state official, a plaintiff must 16 demonstrate that the official “[has] some connection with the enforcement of the 17 act[.]” Ex Parte Young, 209 U.S. at 157. Under the Young doctrine, the 18 enforcement connection “must be fairly direct,” and a “generalized duty to enforce 19 state law or general supervisory powers over the person responsible for enforcing 20 the challenged provision” does not suffice. Los Angeles Cnty. Bar Ass’n v. Eu, 979 21 F.2d 697, 704 (9th Cir. 1992). 22 23 b. Discussion In this case, sovereign immunity bars the present suit against Governor 24 Inslee. Ninth Circuit precedent makes clear that—although a state governor may be 25 ultimately responsible for executing and enforcing the laws of a state—the duty of 26 general enforcement does not establish the “requisite enforcement connection” to 27 overcome sovereign immunity. Ass’n des Eleveurs de Canards et d’Oies du 28 Quebec v. Harris, 729 F.3d 937, 943 (9th Cir. 2013) (finding that the California ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT . . . * 13 Case 1:20-cv-03182-SAB ECF No. 60 filed 09/21/21 PageID.2058 Page 14 of 42 1 Governor was immune from suit with respect to claims for injunctive relief 2 because “his only connection to [the relevant statute] [was] his general duty to 3 enforce California law”), cert. denied, 135 S.Ct. 398 (2014); Nat’l Audubon Soc’y, 4 Inc. v. Davis, 307 F.3d 835, 847 (9th Cir. 2002) (finding that the “suit is barred 5 against the Governor . . . as there is no showing that they have the requisite 6 enforcement connection”), opinion amended on denial of reh’g, 312 F.3d 416 (9th 7 Cir. 2002); Los Angeles Cnty. Bar Ass’n, 979 F.2d at 704 (citing Long v. Van de 8 Kamp, 961 F.2d 151, 152 (9th Cir. 1992) (holding that the “connection must be 9 fairly direct; a generalized duty to enforce state law or general supervisory power 10 over the persons responsible for enforcing the challenged provision will not subject 11 an official to suit”); see also Nat’l Conf. of Pers. Managers, Inc. v. Brown, 690 F. 12 App’x 461, 463 (9th Cir. 2017). “Were the law otherwise, the exception would 13 always apply[ ]” and “[g]overnors who influence state executive branch policies 14 (which virtually all governors do) would always be subject to suit under Ex Parte 15 Young.” Tohono O’Odham Nation v. Ducey, 130 F. Supp. 3d 1301, 1311 (D. Ariz. 16 2015). In short, a more direct connection to enforcement of the law is required, and 17 the Eleventh Amendment bars suit against Governor Inslee. Accordingly, 18 Governor Inslee is dismissed from this action. 19 Defendants do not appear to challenge whether Attorney General Ferguson 20 is properly named in this suit, and the Court agrees sovereign immunity is not a 21 jurisdictional bar as to the Attorney General. Cf. Planned Parenthood of Idaho, 22 Inc. v. Wasden, 376 F.3d 908, 920 (9th Cir. 2004) (holding that the Idaho Attorney 23 General was properly named under Ex Parte Young because, unless the county 24 prosecutor objected, the Attorney General had power to perform every act the 25 county attorney could perform); Bolbol v. Brown, 120 F. Supp. 3d 1010, 1018–19 26 (N.D. Cal. 2015) (holding that the California Attorney General was not entitled to 27 Eleventh Amendment immunity because under the state constitution the Attorney 28 General not only has “direct supervision over every district attorney” but also has ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT . . . * 14 Case 1:20-cv-03182-SAB ECF No. 60 filed 09/21/21 PageID.2059 Page 15 of 42 1 the duty to “prosecute any violations of the law … [and] shall have all the powers 2 of a district attorney”). 3 4 5 3. Whether the Court Has Jurisdiction to Enjoin Purported Violations of the Washington Constitution The parties now agree that the Court lacks jurisdiction to enjoin purported 6 violations of the Washington Constitution. See ECF No. 37 at 14. As a result, the 7 Court dismisses Plaintiffs’ Third Claim for Relief on the grounds of state sovereign 8 immunity and federalism, as embodied in the Eleventh Amendment. 9 B. First Cause of Action: Contracts Clause of Article I, § 10 of the U.S. Constitution 10 11 12 1. Whether the Eviction Moratorium Violates the Contracts Clause Of their substantive claims, Plaintiffs first argue that Washington’s eviction 13 moratorium violates the Contracts Clause of Article I, § 10 of the U.S. 14 Constitution. Plaintiffs argue that the eviction moratorium violates the Contracts 15 Clause because it substantially impairs their landlord-tenant contracts. They 16 contend that the ability to evict is the “cornerstone” of their contractual bargain and 17 the moratorium eliminates all practical remedies for contractual violations. ECF 18 No. 22 at 23. Plaintiffs cite mostly pre-Blaisdell decisions, including Bronson v. 19 Kinzie, 42 U.S. 311 (1843), for the principle that a contractual impairment may be 20 substantial even when remedies for contractual breaches are merely delayed. ECF 21 No. 22 at 24; see generally Home Building & Loan Association v. Blaisdell, 290 22 U.S. 398 (1934). Plaintiffs further assert that the moratorium is not a reasonable 23 and necessary means to address Washington’s stated interest. ECF No. 22 at 27. 24 Their primary contention is that, because the moratorium protects all renters and 25 there is no requirement that a renter attest to loss of income or health impacts from 26 the COVID-19 pandemic, the moratorium is not sufficiently tailored to 27 Defendants’ purpose. Id. at 24–25. 28 ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT . . . * 15 Case 1:20-cv-03182-SAB 1 ECF No. 60 filed 09/21/21 PageID.2060 Page 16 of 42 In contrast, Defendants argue that the moratorium does not impose a 2 substantial, unforeseeable impairment on Plaintiffs’ rental agreements. ECF No. 30 3 at 43–48. Specifically, Defendants claim that the eviction moratorium does not 4 undermine Plaintiffs’ contractual bargain or impair Plaintiffs’ reasonable 5 expectations, and also that Plaintiffs may safeguard or reinstate their contractual 6 rights. Id. Defendants respond that the means of the moratorium is appropriate 7 because it was intended to have broad public benefits, including protection of the 8 state’s economy and public health. ECF No. 30 at 50–51, 53. Defendants chiefly 9 cite Blaisdell in support of the contention that the moratorium fits the Supreme 10 Court’s standard for a reasonable and appropriate law, especially during a period of 11 emergency. See id. at 53. 12 a. Legal Standard 13 The Contracts Clause provides that “[n]o State shall . . . pass any . . . Law 14 impairing the Obligation of Contracts.” U.S. Const. art. I, § 10, cl. 1. Yet, the 15 Contracts Clause is not “the Draconian provision that its words might seem to 16 imply.” Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 240 (1978). Modern 17 Contracts Clause jurisprudence is based on the “watershed decision” of Home 18 Building & Loan Association v. Blaisdell, 290 U.S. 398 (1934). Apartment Ass’n of 19 Los Angeles Cnty., Inc. v. City of Los Angeles, __ F.4th __, No. 20-56251, 2021 20 WL 3745777, at *5 (9th Cir. Aug. 25, 2021). In the case of Blaisdell, the U.S. 21 Supreme Court “upheld Minnesota’s statutory moratorium against home 22 foreclosures, in part, because the legislation was addressed to the ‘legitimate end’ 23 of protecting ‘a basic interest of society.’” Keystone Bituminous Coal Ass’n v. 24 DeBenedictis, 480 U.S. 470, 503 (1987). Pertinent Contract Clauses cases consist 25 of Blaisdell and its progeny, which conceptualize a radically different idea of the 26 Clause than in pre-Blaisdell jurisprudence. Post-Blaisdell, “the Supreme Court has 27 construed [the Contracts Clause] prohibition narrowly in order to ensure that local 28 governments retain the flexibility to exercise their police powers effectively.” ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT . . . * 16 Case 1:20-cv-03182-SAB ECF No. 60 filed 09/21/21 PageID.2061 Page 17 of 42 1 Matsuda v. Cty. & Cnty. of Honolulu, 512 F.3d 1148, 1152 (9th Cir. 2008); Allied 2 Structural Steel Co., 438 U.S. at 240 (“[T]he [state’s] police power[ ] is an exercise 3 of the sovereign right of the Government to protect the lives, health, morals, 4 comfort and general welfare of the people, and is paramount to any rights under 5 contracts between individuals.”) (quoting Manigault v. Springs, 199 U.S. 473, 480 6 (1905)). To determine whether legislation violates the Contracts Clause, federal 7 8 courts deploy a “two-step test.” Sveen v. Melin, __ U.S. __, 138 S. Ct. 1815, 1821– 9 22 (2018). First, “[t]he threshold issue is whether the state law has ‘operated as a 10 substantial impairment of a contractual relationship.’” Id. (quoting Allied 11 Structural Steel Co., 438 U.S. at 244). Under this inquiry, relevant factors include 12 “the extent to which the law undermines the contractual bargain, interferes with a 13 party’s reasonable expectations, and prevents the party from safeguarding or 14 reinstating his rights.” Id. at 1822. Second, if the law constitutes a substantial 15 impairment of a contractual relationship, the court must turn to the “means and 16 ends of the legislation.” Id. The court should determine whether the legislation is 17 drawn in an “‘appropriate’ and ‘reasonable’ way to advance ‘a significant and 18 legitimate public purpose.’” Id. (quoting Energy Reserves Grp., Inc. v. Kansas 19 Power & Light Co., 459 U.S. 400, 411–412 (1983)). Under this second step, courts 20 apply a heightened level of scrutiny when the government is a contracting party. 21 U.S. Trust Co. of N.Y. v. New Jersey, 431 U.S. 1, 25–26 (1977). When the 22 government is not party to the contract being impaired, as is here, “courts properly 23 defer to legislative judgment as to the necessity and reasonableness of a particular 24 measure.” Energy Reserves, 459 U.S. at 413 (quotations omitted); see also 25 Keystone Bituminous, 480 U.S. at 505; Apartment Ass’n of Los Angeles Cnty., 26 2021 WL 3745777 at *5; Lazar v. Kroncke, 862 F.3d 1186, 1199 (9th Cir. 2017). 27 // 28 // ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT . . . * 17 Case 1:20-cv-03182-SAB ECF No. 60 PageID.2062 Page 18 of 42 b. Discussion 1 2 filed 09/21/21 In this case, there is no dispute that Plaintiffs have valid landlord-tenant 3 agreements that are subject to the Contracts Clause. Accordingly, the Court turns 4 to the two-step test re-articulated in Sveen. 5 6 i. Substantial Impairment The Court finds that Washington’s eviction moratorium does not 7 substantially impair Plaintiffs’ lease agreements for three reasons. First, the 8 moratorium does not undermine Plaintiffs’ contractual bargain with their tenants. 9 The moratorium delays the ability of Plaintiffs to exercise certain statutory 10 remedies. Mere delay is insufficient to materially alter the lease agreements in a 11 manner that violates the Contracts Clause. Blaisdell is a strikingly similar case that 12 is directly applicable. 290 U.S. 398 (1934). In Blaisdell, the U.S. Supreme Court 13 upheld a Depression-era mortgage moratorium law extending mortgagors’ 14 redemption period for up to two years. Id. at 439. It reasoned that while contractual 15 obligations may be “impaired by a law which renders them invalid, or releases or 16 extinguishes them[,]” such as a “state insolvent law” that wholly “discharge[s] the 17 debtor from liability” for preexisting debts, the mortgage moratorium did not 18 impose an impairment on the plaintiffs’ contractual rights. Id. at 439 (emphasis 19 added). In that case, the U.S. Supreme Court also distinguished the case cited by 20 Plaintiffs, reasoning that the Court in Bronson did not consider states’ interests in 21 exercising police powers to “safeguard the vital interests of its people.” Id. at 434. 22 Indeed, the Blaisdell Court made clear that changing socioeconomic circumstances 23 may alter the boundaries of the state’s police power. Id. at 442. 24 In this case, the eviction moratorium does not extinguish the contractual 25 obligations of tenants to landlords, but temporarily restrains enforcement through 26 eviction and debt collection during a period of “great public calamity.” Id. The 27 moratorium is only a “temporary restraint of enforcement . . . to protect the vital 28 interests of the community”—that is, protecting the public from a homelessness ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT . . . * 18 Case 1:20-cv-03182-SAB ECF No. 60 filed 09/21/21 PageID.2063 Page 19 of 42 1 epidemic unseen since the Great Recession and preventing further transmission of 2 COVID-19. See id. at 439. The moratorium’s plain language does not extinguish or 3 release tenants’ obligations to pay past-due rent. The moratorium delays the 4 remedy of eviction for failure of a tenant to pay timely rent during the period of the 5 health-emergency-based restriction. It is also significant to note that Proclamation 6 20-19.6 expressly provided that landlords and property managers had the right to 7 treat unpaid rent as enforceable debt immediately if they “demonstrate[d] . . . to a 8 court that the resident was offered, and refused or failed to comply with” a 9 reasonable payment plan. Proc. 20-19.6, ¶ 35. Under the active Bridge 10 Proclamation, past-due rent may be treated as an enforceable debt once a 11 repayment plan has been offered, the SB 5160 programs are implemented, and a 12 tenant has been offered, and rejected or failed to respond to, an opportunity to 13 participate in the programs. In Yakima, the SB 5160 programs are fully operational 14 and Plaintiffs may treat unpaid rent or other charges as an enforceable debt that is 15 owing and collectible after following these procedures. In either scenario, as a 16 matter of law, Plaintiffs are incorrect in their assertion that the moratorium 17 prohibits them “from treating unpaid rent as an enforceable debt and bringing a 18 breach-of-contract action.” ECF No. 22 at 28. 19 Second, the eviction moratorium does not impair reasonable expectations of 20 Plaintiffs in their contracts. Under this factor, courts consider “whether the industry 21 the complaining party has entered has been regulated in the past.” Energy Rsrvs. 22 Grp., Inc., 459 U.S. at 411–12. The landlord-tenant relationship, and housing 23 industry generally, is heavily regulated in Washington. The Residential Landlord24 Tenant Act, Chapter 59.18 RCW, regulates the relationship by, inter alia, 25 establishing a duty to keep the premises fit for human habitation, Wash. Rev. Code 26 § 59.18.060; requiring notice of rent increases, id. § 59.18.140, and termination, id. 27 § 59.18.200; and regulating late fees, id. § 59.18.170, tenant screenings, id. 28 § 59.18.257, and security deposits, id. § 59.18.260–.280. Significantly, Chapter ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT . . . * 19 Case 1:20-cv-03182-SAB ECF No. 60 filed 09/21/21 PageID.2064 Page 20 of 42 1 59.12 RCW (Forcible Entry and Forcible and Unlawful Detainer), and the 2 Residential Landlord-Tenant Act, both regulate when eviction of tenants is 3 permissible. Wash. Rev. Code §§ 59.12, 59.18.365–.410. In this case, the State’s 4 pervasive regulation in this field has placed Plaintiffs on notice that they may face 5 further government intervention. That is particularly true where, as here, the 6 eviction moratorium regulates the same industry topics (permissible use of 7 unlawful detainer proceedings, late fees, and security deposits) and shares the same 8 legislative intent to protect the rights of tenants in the rental relationship. 9 Consequently, this factor also indicates that the eviction moratorium does not 10 violate the Contracts Clause. 11 Third, Plaintiffs may safeguard and reinstate their contractual rights during 12 and subsequent to the eviction moratorium. A law altering contractual remedies 13 without nullifying them does not “prevent[] the party from safeguarding or 14 reinstating [their] rights.” Sveen, 138 S. Ct. at 1822. As delineated previously, the 15 eviction moratorium did not extinguish Plaintiffs’ contractual rights. Put bluntly, 16 the moratorium delays the use of particular tools to enforce certain contractual 17 obligations for the time of the state of emergency. The eviction moratorium does 18 not eliminate tenants’ obligations to pay rent or Plaintiffs’ rights to collect past-due 19 rent. And contrary to Plaintiffs’ representations, Plaintiffs may treat unpaid rent as 20 an enforceable debt during the moratorium after following the above-noted 21 procedures. Because the moratorium does not nullify contractual remedies, the 22 eviction moratorium does not impair Plaintiffs’ ability to safeguard their 23 contractual rights in their rental agreements. 24 Due to the foregoing, the Court finds that the eviction moratorium does not 25 substantially impair Plaintiffs’ lease agreements. Even if the Court were to find 26 that the moratorium operated to substantially impair Plaintiffs’ contractual rights, 27 Plaintiffs’ Contracts Clause claim fails because the eviction moratorium advances 28 ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT . . . * 20 Case 1:20-cv-03182-SAB ECF No. 60 filed 09/21/21 PageID.2065 Page 21 of 42 1 a significant and legitimate public purpose in an appropriate and reasonable way. 2 Each element is discussed in turn. 3 4 ii. Significant and Legitimate Purpose Public Each of Washington’s proffered reasons for the eviction moratorium are 5 significant and legitimate public objectives. On its face, Proclamation 20-19.6 6 states that its purpose is to “reduce economic hardship” of those “unable to pay 7 rent as a result of the COVID-19 pandemic” and “promote public health and safety 8 by reducing the progression of COVID-19 in Washington State.” Proc. 20-19.6, ¶¶ 9 13, 15. The Bridge Proclamation extends this purpose with the goal of “reduc[ing] 10 uncertainty” as the state implements a long-term post-COVID-19 housing recovery 11 strategy. Proc. 21-09, ¶ 23. 12 Here, the state’s purpose of preventing transmission of COVID-19 is not 13 only significant and legitimate, but compelling. See, e.g., Roman Catholic Diocese 14 of Brooklyn v. Cuomo, __ U.S. __, 141 S. Ct. 63, 67 (2020) (per curiam) 15 (“Stemming the spread of COVID–19 is unquestionably a compelling 16 interest . . . .”); Workman v. Mingo Cnty. Bd. of Educ., 419 F. App’x 348, 353 (4th 17 Cir. 2011) (“[T]he state’s wish to prevent the spread of communicable diseases 18 clearly constitutes a compelling interest.”). The eviction moratorium also seeks to 19 address the economic and social fallout from the gravest public health crisis in a 20 century. The Governor’s Office was particularly concerned with the impact of 21 COVID-19, and all its economic consequences, on housing and the homelessness 22 crisis. It cannot seriously be argued that these objectives do not serve the public 23 and that they do not constitute significant and legitimate purposes of the state. 24 Consequently, the Court finds that Defendants have articulated a significant and 25 legitimate public purpose for the eviction moratorium. 26 27 iii. Appropriate and Reasonable Means The eviction moratorium is also an appropriate and reasonable measure to 28 address the state’s objectives. Since Washington is not a party to the contracts ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT . . . * 21 Case 1:20-cv-03182-SAB ECF No. 60 filed 09/21/21 PageID.2066 Page 22 of 42 1 under review, the Court must “defer” to the government’s “judgment as to the 2 necessity and reasonableness of a particular measure.” Energy Rsrvs. Grp., 459 3 U.S. at 412–13. Such “latitude ‘must be especially broad” where “officials 4 ‘undertake to act in areas fraught with medical and scientific uncertainties,” such 5 as responding to the COVID-19 pandemic. S. Bay United Pentecostal Church v. 6 Newsom, __ U.S. __, 140 S. Ct. 1613, 1613–14 (2020) (Roberts, C.J., concurring) 7 (quoting Marshall v. United States, 414 U.S. 417, 427 (1974)). Provided that the 8 limits of the Contracts Clause are not exceeded, the Court should decline to engage 9 in second-guessing, as the “unelected federal judiciary” lacks the “background, 10 competence, and expertise to assess public health.” Id. (quoting Garcia v. San 11 Antonio Metro. Transit Auth., 469 U.S. 528, 545 (1985)). 12 On this point, Plaintiffs argue that the moratorium is not reasonable and 13 appropriate because it applies “regardless of a tenant’s employment or ability to 14 pay.” ECF No. 22 at 18. This argument misses the forest for the trees. Regardless 15 of the pandemic’s impact on any specific individual’s financial or health 16 circumstances, one of the moratorium’s express intentions is to reduce person-to17 person contact to mitigate transmission of COVID-19. At least one study’s 18 projections indicated that mass evictions could have resulted in up to 59,008 more 19 eviction-attributable COVID-19 cases, 5,623 more hospitalizations, and 621 more 20 deaths in Washington. ECF No. 35-1 at 64–65. Further, the reasonableness of the 21 state’s public purpose of preventing homelessness during the pandemic is directly 22 supported by Blaisdell, where the Supreme Court upheld a similar law enacted 23 during an “emergency” that “threaten[ed] the loss of homes.” 290 U.S. at 444–45. 24 Plaintiffs also maintain that the eviction moratorium places an unreasonable 25 burden of its public benefit on landlords and property managers. But virtually 26 every law “regulating commercial and other human affairs . . . creates burdens for 27 some that directly benefit others.” Connolly v. Pension Benefit Guar. Corp., 475 28 U.S. 211, 223 (1986). Simply because the moratorium “requires one person to use ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT . . . * 22 Case 1:20-cv-03182-SAB ECF No. 60 filed 09/21/21 PageID.2067 Page 23 of 42 1 his or her assets for the benefit of another” does not raise the eviction moratorium 2 to a level of unconstitutionality under the Contracts Clause. Id. It does not serve 3 special interests but seeks to protect the basic interest of society in preventing mass 4 evictions and housing instability, id., and preventing the further spread of COVID5 19. For all these reasons, and in accordance with the numerous other district 6 7 courts that have considered constitutional challenges to state eviction moratoria, 8 the Court finds that Washington’s moratorium is an appropriate and reasonable 9 response to the state’s significant and legitimate public purpose of preventing 10 spread of COVID-19 and exacerbation of the homelessness crisis. See, e.g., 11 HAPCO v. City of Philadelphia, 482 F. Supp. 3d 337, 355 (E.D. Pa. 2020) (finding 12 that “as in Blaisdell, where temporary measures enacted in response to emergency 13 conditions to allow people to remain in their homes under certain conditions was 14 upheld in response to a Contracts Clause challenge, [plaintiff’s] Contracts Clause 15 challenge to the City’s temporary legislation, enacted in response the COVID-19 16 pandemic and designed to allow residents to remain in their homes, is unlikely to 17 succeed on the merits”); El Papel LLC v. Inslee, No. 2:20-CV-01323-RAJ-JRC, 18 2020 WL 8024348, at *7 (W.D. Wash. Dec. 2, 2020), report and recommendation 19 adopted, No. 2:20-CV-01323-RAJ-JRC, 2021 WL 71678 (W.D. Wash. Jan. 8, 20 2021) (“Blaisdell supports the reasonableness of [Washington’s Moratorium].”). 21 The Court declines to second-guess the expertise of the state in formulating an 22 appropriate response to the present public health emergency, which is fraught with 23 medical and scientific uncertainties. Accordingly, Defendants are entitled to 24 judgment as a matter of law and the Court grants summary judgment in favor of 25 Defendants on the Contracts Clause claim. 26 // 27 // 28 // ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT . . . * 23 Case 1:20-cv-03182-SAB ECF No. 60 filed 09/21/21 PageID.2068 Page 24 of 42 C. Second Cause of Action: Takings Clause of the Fifth Amendment to the 1 U.S. Constitution 2 Plaintiffs’ next cause of action contends that the eviction moratorium 3 4 constitutes a per se physical taking of their property rights under the Fifth 5 Amendment to the U.S. Constitution. Plaintiffs do not request monetary damages 6 in this action. Instead, they request the Court grant declaratory relief that a “taking” 7 has occurred, so that they may begin the process to acquire “just compensation.” 8 Their core Takings Clause claim is that the eviction moratorium leads to a physical 9 invasion of private property and thereby “takes” Plaintiffs’ right to exclude. ECF 10 No. 22 at 6–11. They cite Cedar Point Nursery v. Hassid, ___ U.S. ___, 141 S. Ct. 11 2063 (2021) to support their assertion that the moratorium constitutes a physical 12 taking. ECF No. 48 at 2–9. Plaintiffs also argue that the eviction moratorium 13 amounts to a per se taking because it appropriates their property rights in their 14 rental contracts and security deposits. Id. at 11–12. Defendants argue that the eviction moratorium is not a per se taking because 15 16 the state has not physically invaded Plaintiffs’ properties or otherwise appropriated 17 their property rights. They contend that Cedar Point Nursery is factually and 18 legally distinguishable and the case actually reaffirms the U.S. Supreme Court’s 19 prior holdings that regulations restricting the use of property without a physical 20 invasion of land, particularly when the use is premised on the owner’s voluntary 21 invitation to an occupant, are not per se takings. ECF No. 56 at 2–5. Defendants 22 also claim that the U.S. Supreme Court’s per se takings jurisprudence does not 23 apply to property interests in contracts, and nonetheless, the eviction moratorium 24 appropriated neither Plaintiffs’ contractual rights nor security deposits. ECF No. 30 25 at 36–38. 26 // 27 // 28 // ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT . . . * 24 Case 1:20-cv-03182-SAB 1 1. 2 3 ECF No. 60 filed 09/21/21 PageID.2069 Page 25 of 42 Whether Declaratory Relief is Available to Plaintiffs a. Legal Standard The Takings Clause prohibits a state from taking private property for public 4 use “without just compensation.” U.S. Const. amend. V. Accordingly, “[e]quitable 5 relief is not available to enjoin an alleged taking of private property for public 6 use . . . when a suit for compensation can be brought against the sovereign 7 subsequent to the taking.” Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016 8 (1984) (citing Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 9 (1949)); accord Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Env’t Prot., 10 560 U.S. 702, 740 (2010) (Kennedy, J., concurring). The U.S. Supreme Court 11 reasoned in Knick v. Township of Scott, Pa., 588 U.S. ___, 139 S. Ct. 2162 (2019) 12 that, “[t]oday, because the federal and nearly all state governments provide just 13 compensation remedies to property owners who have suffered a taking, equitable 14 relief is generally unavailable. As long as an adequate provision for obtaining just 15 compensation exists, there is no basis to enjoin the government’s action effecting a 16 taking.” Id. at 2176–77. The Court concluded that “a government violates the 17 Takings Clause when it takes property without compensation, and that a property 18 owner may bring a Fifth Amendment claim under [42 U.S.C.] § 1983 at that time.” 19 Id. at 2177. 20 21 b. Discussion The Court first considers whether the declaratory relief sought is available to 22 Plaintiffs. In this case, Plaintiffs do not seek proper relief for a Fifth Amendment 23 taking. Plaintiffs seek declaratory relief that a taking has occurred, not monetary 24 damages. As other federal district courts have found, such relief is inappropriate 25 because it would be the functional equivalent of an injunction against enforcement 26 of the moratorium. See, e.g., Baptise v. Kennealy, 490 F. Supp. 3d 353, 391 (D. 27 Mass. 2020); County of Butler v. Wolf, No. 2:20-cv-677, 2020 WL 2769105, *4 28 (W.D. Pa. May 28, 2020); HAPCO, 482 F. Supp. 3d at 358, 358 n.112. The ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT . . . * 25 Case 1:20-cv-03182-SAB ECF No. 60 filed 09/21/21 PageID.2070 Page 26 of 42 1 declaratory judgment sought by Plaintiffs is indisputably a type of equitable 2 remedy. Apache Survival Coalition v. United States, 21 F.3d 895, 905 n.12 (9th 3 Cir. 1994). Accordingly, the relief sought by Plaintiffs is foreclosed by the 4 Supreme Court’s decision in Knick, 139 S. Ct. at 2177. The remedy for a taking 5 under the Fifth Amendment is damages, not equitable relief. 3 For this reason, the 6 Court is unable to grant the relief sought by Plaintiffs. 2. 7 Whether the Eviction Moratorium Constitutes a Per Se Physical Taking 8 a. Legal Standard 9 The Fifth Amendment’s Takings Clause applies to the states through the 10 Fourteenth Amendment. Murr v. Wisconsin, __ U.S. __, 137 S. Ct. 1933, 1942 11 (2017); Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 536 (2005). As previously 12 stated, the Fifth Amendment provides that private property shall not “be taken for 13 public use, without just compensation.” U.S. Const. amend. V. Under the Takings 14 Clause, there are traditionally two categories of takings, (1) per se physical takings, 15 and (2) regulatory takings. To summarize: Our jurisprudence involving condemnations and physical takings is as 16 old as the Republic and, for the most part, involves the straightforward 17 application of per se rules. Our regulatory takings jurisprudence, in contrast, is of more recent vintage and is characterized by ‘essentially 18 ad hoc, factual inquiries,’ designed to allow ‘careful examination and 19 weighing of all the relevant circumstances.’” 20 Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 21 321 (2002) (internal citations omitted). “The first category of cases requires courts 22 to apply a clear rule; the second necessarily entails complex factual assessments of 23 the purposes and economic effects of government actions.” Yee v. Escondido, 503 24 25 3 It is worth noting that the Washington State Constitution provides an avenue for 26 obtaining compensation via damages for the alleged taking of property. Wash. 27 Const. art. I, § 16. Plaintiffs have not attempted to acquire just compensation for 28 the purported taking through available state procedures. ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT . . . * 26 Case 1:20-cv-03182-SAB ECF No. 60 filed 09/21/21 PageID.2071 Page 27 of 42 1 U.S. 519, 523 (1992). “This longstanding distinction between acquisitions of 2 property for public use, on the one hand, and regulations prohibiting private uses, 3 on the other, makes it inappropriate to treat cases involving physical takings as 4 controlling precedents for the evaluation of a claim that there has been a 5 ‘regulatory taking,’ and vice versa.” Tahoe-Sierra Pres. Council, Inc., 535 U.S. at 6 322. 7 Under the first category of per se physical takings, “[w]hen the government 8 physically takes possession of an interest in property for some public purpose, it 9 has a categorical duty to compensate the former owner, regardless of whether the 10 interest that is taken constitutes an entire parcel or merely a part thereof. Thus, 11 compensation is mandated when a leasehold is taken and the government occupies 12 the property for its own purposes, even though that use is temporary.” Id. The U.S. 13 Supreme Court acknowledged that the same was true when the government 14 physically appropriated part of a rooftop to provide cable TV access for apartment 15 tenants in Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982), 16 and where the government used its planes in private airspace to approach a 17 government airport in United States v. Causby, 328 U.S. 256 (1946). Tahoe-Sierra 18 Pres. Council, Inc., 535 U.S. at 322. 19 Under the second category of regulatory takings, which contrasts with the 20 categorical per se takings rule, courts consider complex factual assessments of the 21 purposes and economic effects of governmental actions. Id. at 323 (quoting Yee, 22 503 U.S. at 523). The seminal regulatory takings case is Penn Central Transp. Co. 23 v. City of New York, 439 U.S. 883 (1978). Plaintiffs do not challenge the 24 moratorium as a regulatory taking and, for this reason, the Court does not 25 extrapolate the Penn Central standard here. Accord Yee, 503 U.S. at 536–37. 26 In Loretto, a per se takings case, the U.S. Supreme Court considered a 27 challenge to a New York statute requiring that landlords permit a cable television 28 company to install television facilities on their properties, and which prohibited ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT . . . * 27 Case 1:20-cv-03182-SAB ECF No. 60 filed 09/21/21 PageID.2072 Page 28 of 42 1 demands for payment from the company in excess of an amount determined 2 reasonable by the state commission. Loretto, 458 U.S. at 423. The petitioner 3 brought a class action for damages, alleging that the statute constituted a taking. Id. 4 The question for the U.S. Supreme Court was “whether an otherwise valid 5 regulation so frustrates property rights that compensation must be paid.” Id. at 6 425–26 (citing Penn. Central Transp. Co., 439 U.S. at 127–28). The U.S. Supreme 7 Court’s decision hinged firmly on its interpretation of the third Penn Central 8 factor, which considers the “character” of the governmental action. Id. at 429–430. 9 The Court concluded that “a permanent physical occupation authorized by 10 government is a taking without regard to the public interests that it may serve,” id. 11 at 426, and that there was invariably a taking because the statute mandated the 12 permanent physical occupation of real property, id. at 427. The Court’s reasoning 13 relied heavily on the distinction between a permanent occupation and temporary 14 physical invasion. Id. at 434 (citing PruneYard Shopping Center v. Robins, 447 15 U.S. 74 (1980)). While a temporary physical invasion is subject to a balancing 16 process under the three Penn Central factors, “when the ‘character of the 17 governmental action[ ]’ is a permanent physical occupation of property, our cases 18 uniformly have found a taking to the extent of the occupation, without regard to 19 whether the action achieves an important public benefit or has only minimal 20 economic impact on the owner.” Id. at 434–35 (internal citation omitted). Thus, the 21 Court held in Loretto that “permanent physical invasions” are not subject to 22 balancing under the remaining Penn Central factors and are instead per se takings. 23 Subsequent to Loretto, the U.S. Supreme Court decided Yee v. City of 24 Escondido, California, 503 U.S. 519 (1992). The petitioners in Yee were mobile 25 home park owners in Escondido, California, who rented pads of land to mobile 26 homeowners. Id. at 523. California’s Mobilehome Residency Law limited the 27 reasons that a park owner could terminate a mobile homeowner’s tenancy to (1) 28 nonpayment of rent; and (2) the park owner’s desire to change the use of his or her ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT . . . * 28 Case 1:20-cv-03182-SAB ECF No. 60 filed 09/21/21 PageID.2073 Page 29 of 42 1 land. Id. at 524. The City also had a rental control ordinance that prohibited rent 2 increases absent the City Council’s approval. Id. at 524–25. Petitioners argued that 3 the local rent ordinance, in conjunction with the Mobilehome Residency Law, 4 amounted to a per se physical taking. Id. at 523–24. The U.S. Supreme Court held 5 that the rent control ordinance did not authorize an unwanted physical occupation 6 of petitioners’ property and therefore did not amount to a per se taking. Id. at 532. 7 The Court rejected petitioners’ argument that the rental control ordinance 8 authorized a physical taking because the law, in conjunction with the state law’s 9 restrictions, granted a homeowner a right to occupy the pad indefinitely at a 10 submarket rent. In rejecting this argument, the Court reasoned that a physical 11 taking occurs “only when [the government] requires the landowner to submit to 12 physical occupation of his land.” Id. at 527 (emphasis in original). The petitioners 13 were not compelled by the city or state to continue renting their properties. Id. The 14 Court determined that, because the laws merely regulated petitioners’ use of their 15 land by regulating the relationship between landlord and tenant, they could not be 16 squared with the Court’s physical takings cases. Id. at 527–28. The U.S. Supreme 17 Court concluded: “This Court has consistently affirmed that States have broad 18 power to regulate housing conditions in general and the landlord-tenant 19 relationship in particular without paying compensation for all economic injuries 20 that such regulation entails.” Id. at 528–29 (quoting Loretto, 458 U.S. at 440); 21 Florida Power Corp., 480 U.S. at 252 (“[S]tatutes regulating the economic 22 relations of landlords and tenants are not per se takings.”). 23 The U.S. Supreme Court issued a more recent decision concerning the 24 Takings Clause in Cedar Point Nursery v. Hassid, ___ U.S. ___, 141 S. Ct. 2063 25 (2021). In Cedar Point Nursery, the Court held that a California access regulation 26 that gave outside labor organizers a right to “take access” to agricultural 27 employers’ property was a per se physical taking because it appropriated property 28 owners’ “right to exclude,” both for the government itself and for third parties. Id. ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT . . . * 29 Case 1:20-cv-03182-SAB ECF No. 60 filed 09/21/21 PageID.2074 Page 30 of 42 1 at 2072 (quoting Cal. Code. Regs., tit. 8, § 20900(e)(1)(C) (2020)). The regulation 2 required agricultural employers to permit union organizers on their property for 3 three hours a day, 120 days per year, for the purpose of soliciting employees to join 4 or form a union. Id. at 2069. The Court reasoned that the occupation was a physical 5 taking because it impacted the right to exclude, which is the “sine qua non” of 6 property. Id. at 2072–73. The Court rejected the notion that the failure of the 7 regulation to invade the property right “around the clock” made the taking any less 8 a taking under the Fifth Amendment. Id. at 2075. Through Cedar Point Nursery, it 9 appears the Court implicitly overruled its previous rationale under per se 10 jurisprudence that distinguished between “permanent physical occupations” and 11 “temporary physical invasions.” See Loretto, 458 U.S. at 434 (citing PruneYard 12 Shopping Center, 447 U.S. at 74). 13 14 b. Discussion Even if the Court were to find that declaratory relief was available to 15 Plaintiffs, the Court finds that Washington’s eviction moratorium does not 16 constitute a per se physical taking under the Takings Clause. With respect to 17 Plaintiffs’ assertion regarding physical occupation, the moratorium does not 18 constitute a per se taking because the moratorium did not require Plaintiffs to 19 submit to physical occupation or invasion of their land and did not appropriate 20 Plaintiffs’ right to exclude. The U.S. Supreme Court has made clear that “statutes 21 regulating the economic relations of landlords and tenants are not per se takings.” 22 Florida Power Corp., 480 U.S. at 252. No physical invasion has occurred beyond 23 that agreed to by Plaintiffs in renting their properties as residential homes, which is 24 naturally subject to regulation by the state. Like traditional regulatory takings 25 cases, the moratorium “transfers wealth from the landlord to the tenants by 26 reducing the landlords’ income and the tenants’ monthly payments.” Yee, 503 U.S. 27 at 529. But, as the Supreme Court stated in Yee, the existence of the wealth transfer 28 “in itself does not convert regulation into physical invasion.” Id. at 530. To find ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT . . . * 30 Case 1:20-cv-03182-SAB ECF No. 60 filed 09/21/21 PageID.2075 Page 31 of 42 1 that the eviction moratorium is a per se physical taking would require the Court to 2 disregard the U.S. Supreme Court’s holdings and rationale in both Loretto and Yee; 3 it would essentially require the Court to eliminate the line between the U.S. 4 Supreme Court’s per se takings and regulatory takings jurisprudence. Such 5 activism is not the occupation of this Court. 6 Plaintiffs’ attempt to distinguish Yee from this case fails, as the plaintiffs in 7 Yee similarly argued that the ordinance required them to lease to tenants beyond 8 their original lease terms. 503 U.S. at 526–27 (“Because under the California 9 Mobilehome Residency Law the park owner cannot evict a mobile home owner or 10 easily convert the property to other uses, the argument goes, the mobile home 11 owner is effectively a perpetual tenant of the park. . . .”). In this case, just as in Yee, 12 Plaintiffs voluntarily invited tenants to occupy their properties as residential 13 homes. The state has not required any physical invasion and their tenants were “not 14 forced upon them by the government.” Id. at 528. Plaintiffs’ right to exclude has 15 not been taken because the moratorium compelled no physical invasion or 16 occupation that Plaintiffs would have forfeited in the first place. See id. at 532–33. 17 Instead, the eviction moratorium regulates the landlord-tenant relationship once it 18 is already established. 19 Cedar Point Nursery also does not disturb the Court’s analysis. The 20 California access regulation challenged in Cedar Point Nursery is distinguishable 21 from the eviction moratorium in this case. Unlike the physical appropriation of the 22 right to exclude in Cedar Point Nursery, the moratorium regulates the landlords 23 “use of their land by regulating the relationship between landlord and tenant.” Yee, 24 503 U.S. at 528. Based on the undisturbed precedent of Yee, limitations on how a 25 landlord may treat tenants—which they have voluntarily invited onto their 26 properties by renting to them—and enforce their contractual rights (for a temporary 27 period) are readily distinguishable from regulations granting a separate right to 28 invade property closed to the public or most individuals. Id. at 527–28, 531. ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT . . . * 31 Case 1:20-cv-03182-SAB ECF No. 60 filed 09/21/21 PageID.2076 Page 32 of 42 1 Second, central to the U.S. Supreme Court’s decision in Yee and as already noted, 2 Plaintiffs voluntarily invited tenants onto their properties. Id. at 531 (“Because they 3 voluntarily open their property to occupation by others, petitioners cannot assert a 4 per se right to compensation based on their inability to exclude particular 5 individuals.), 527 (“Petitioners voluntarily rented their land to mobile home 6 owners.”), 528 (“Petitioners’ tenants were invited by petitioners, not forced upon 7 them by the government.”). Plaintiffs’ tenants were invited by themselves, not 8 forced upon them by the government. Id. at 528. Cedar Point Nursery does not 9 overrule Yee or undermine the legal underpinnings of Yee. Indeed, in Cedar Point 10 Nursery, the Court cited Yee for general takings principles, and Yee’s holding is 11 still binding law on this Court. 12 While Cedar Point Nursery announced that a non-continuous, intermittent 13 easement created by California’s access regulation affected a per se physical 14 taking, it did not undermine or disturb the long-standing principle that “[t]he 15 government effects a physical taking only where it requires the landowner to 16 submit to the physical occupation of his land.” Yee, 503 U.S. at 527. Because the 17 moratorium does not commit a physical appropriation of Plaintiffs’ land beyond 18 that consented by Plaintiffs in renting their units as residential properties—an 19 industry heavily regulated by the State of Washington—the eviction moratorium 20 does not constitute a per se taking under the Fifth Amendment. See S. Cal. Rental 21 Housing Ass’n v. Cnty. of San Diego, No. 3:21-CV-912-L-DEB, 2021 WL 22 3171919, at *8 (S.D. Cal. July 26, 2021) (distinguishing Cedar Point Nursery and 23 holding that plaintiff failed to show a likelihood of success on the merits on its 24 Takings Clause claim challenging California’s eviction moratorium). 25 Plaintiffs’ argument that the eviction moratorium effects a taking in their 26 rental contracts also fails. Plaintiffs cite regulatory takings case Cienega Gardens 27 v. United States, (Fed. Cir. 2003) for their contention that the moratorium’s impact 28 on their contracts constitutes a per se taking. Such is an inapplicable framework for ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT . . . * 32 Case 1:20-cv-03182-SAB ECF No. 60 filed 09/21/21 PageID.2077 Page 33 of 42 1 Plaintiffs’ physical takings claim, as it is inappropriate for this Court to “treat cases 2 involving physical takings as controlling precedents for the evaluation of a claim 3 that there has been a ‘regulatory taking,’ and vice versa.” Tahoe-Sierra Pres. 4 Council, Inc., 535 U.S. at 322. Plaintiffs also cite eminent domain case United 5 States v. Petty Motor Company, 327 U.S. 372 (1946). Petty Motor Company is 6 unpersuasive because it is not factually analogous and involves physical 7 occupation. In that case, the United States physically appropriated a property 8 owner and tenant’s leaseholds, requiring that the defendants submit their real 9 property to the government’s immediate possession. Id. at 374–75. Here, the 10 eviction moratorium does not eliminate or relinquish a contractual right of 11 Plaintiffs; indeed, the moratorium did not diminish a single tenant’s debt obligation 12 to Plaintiffs by even a penny. Plaintiffs’ arguments on this point are not supported 13 by law and are of no avail. 14 For a similar reason, the eviction moratorium does not take Plaintiffs’ 15 property interests in security deposits. Plaintiffs claim that by limiting available 16 uses of the security deposit during the period of emergency to prevent deductions 17 for past-due rent, Washington has committed a per se taking of its property interest 18 in their tenants’ security deposits. See ECF No. 22 at 12 (also arguing that the 19 purpose of a security deposit is to reimburse landlords for unpaid rent at end of 20 tenancy). The cases cited by Plaintiffs on this point concern actual confiscation of 21 property by the government and are inapposite. See, e.g., Brown v. Legal Found. of 22 Wash., 538 U.S. 216, 240 (2003) (holding that interest on interpleaded funds 23 exacted by the government could be a per se taking); Webb’s Fabulous 24 Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 164–65 (1980) (holding that 25 confiscation of interest on client funds deposited into lawyers’ trust accounts was a 26 per se taking). As previously stated, the eviction moratorium does not extinguish 27 Plaintiffs’ property interest in collecting unpaid rent whatsoever. Plaintiffs also 28 remain able to deduct charges from security deposits for other tenant violations of ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT . . . * 33 Case 1:20-cv-03182-SAB ECF No. 60 filed 09/21/21 PageID.2078 Page 34 of 42 1 the Residential Landlord-Tenant Act, subject to state’s accounting requirements. 2 Wash. Rev. Code § 59.18.280. This contention is particularly unpersuasive because 3 Plaintiffs can recover any amount they would otherwise deduct from a tenant’s 4 security deposit for unpaid rent by pursuing debt enforcement in accordance with 5 the terms of the Bridge Proclamation and SB 5160. Washington is permitted to 6 modify permissible uses of security deposits under its regulatory scheme, as it has 7 done here, and it does not amount to a per se taking under the Fifth Amendment. 8 For the foregoing reasons, Plaintiffs’ Fifth Amendment claim fails as a 9 matter of law. The Court grants summary judgment in favor of Defendants. 10 11 12 D. Fourth Cause of Action: Due Process Clause of the Fourteenth Amendment to the U.S. Constitution Plaintiffs’ final claim asserts two distinct arguments under the Due Process 13 Clause of the Fourteenth Amendment to the U.S. Constitution. Plaintiffs contend 14 that the eviction moratorium violates the Due Process Clause because it is (1) 15 unconstitutionally vague; and (2) “unduly oppressive” and thereby violative of 16 substantive due process. ECF No. 22 at 32. 17 First, Plaintiffs argue that the eviction moratorium is impermissibly vague 18 because it does not provide guidance as to how a landlord or property manager 19 may construct a “reasonable payment plan” that is based on a tenant’s individual 20 financial, health, or other circumstances. Plaintiffs Jay Glenn and Enrique Jevons 21 submitted declarations indicating that they have managed to create repayment 22 plans with several tenants. ECF No. 37-1 at 3–4; ECF No. 37-2 at 2–3. Plaintiff 23 Jevons stated that, previously, he had not attempted to even inquire about 24 individual tenants’ circumstances because it seemed “devious” on his part. ECF 25 No. 37-2 at 2. The core of Plaintiffs’ vagueness grievance is that they experience 26 difficulty ascertaining individual tenants’ financial or health circumstances, in part 27 because tenants are not required to communicate with them. Id. at 2–3. 28 ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT . . . * 34 Case 1:20-cv-03182-SAB 1 ECF No. 60 filed 09/21/21 PageID.2079 Page 35 of 42 Defendants assert that the void for vagueness doctrine does not apply 2 because due process only prohibits impermissibly vague laws with civil and 3 criminal penalties. See ECF No. 30 at 59. Nonetheless, they further argue that the 4 eviction moratorium’s repayment plan provision provides constitutionally 5 permissible “flexibility and reasonable breadth” to courts, and that its terms 6 provide “fair notice” of what is expected of Plaintiffs. Id. at 60 (citations omitted). 7 Second, Plaintiffs assert that that the eviction moratorium is unduly 8 oppressive of “Plaintiffs’ right to determine the conditions upon which a person 9 may continue to occupy the owner’s property.” ECF No. 22 at 34–35. They 10 contend that they are “unjustifiably prevented from being able to rightfully use 11 their properties and mitigate damages where tenants fail to pay rent.” Id. at 37. 12 Defendants respond that Plaintiffs are barred from repackaging their Takings 13 Clause and Contracts Clause claims into a substantive Due Process Clause claim 14 because the former provide explicit textual sources of constitutional protection of 15 the asserted rights. ECF No. 30 at 60–61. In addition, Defendants claim that 16 Plaintiffs’ substantive due process claim should not be analyzed under a 17 heightened standard of scrutiny, as the challenge is based on Plaintiffs’ economic 18 interests. See ECF No. 30 at 57. Under the appropriate standard, they argue, the 19 moratorium is not arbitrary or irrational for the same reasons it furthers a 20 significant and legitimate public purpose. Id. at 58. 21 1. Whether the Eviction Moratorium is Unconstitutionally Vague 22 a. Legal Standard 23 The Due Process Clause of the Fourteenth Amendment provides that “[n]o 24 State shall . . . deprive any person of life, liberty, or property, without due process 25 of law[.]” U.S. Const. amend XIV. “‘It is a basic principle of due process that an 26 enactment is void for vagueness if its prohibitions are not clearly defined.’” City of 27 Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289–90 (1982) (quoting Grayned 28 v. City of Rockford, 408 U.S. 104, 108 (1972) (emphasis added)). For example, a ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT . . . * 35 Case 1:20-cv-03182-SAB ECF No. 60 filed 09/21/21 PageID.2080 Page 36 of 42 1 conviction fails to comport with due process when the statute under which it is 2 obtained “fails to provide a person of ordinary intelligence fair notice of what is 3 prohibited, or is so standardless that it authorizes or encourages seriously 4 discriminatory enforcement.” United States v. Williams, 553 U.S. 285, 304 (2008) 5 (citing Hill v. Colorado, 530 U.S. 703, 732 (2000)) (emphasis added). Where the 6 law “implicates First Amendment rights, . . . a ‘more demanding’ standard of 7 scrutiny applies.” Hunt v. City of Los Angeles, 638 F.3d 703, 712 (9th Cir. 2011) 8 (quoting Grayned, 408 U.S. at 108). But “perfect clarity and precise guidance have 9 never been required even of regulations that restrict expressive activity.” Id. 10 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 794 (1989)). 11 A statute may be challenged as unconstitutionally vague on its face or as 12 applied to a particular party. See United States v. Kilbride, 584 F.3d 1240, 1256–59 13 (9th Cir. 2009). “Outside the First Amendment context, a plaintiff alleging facial 14 vagueness must show that the enactment is impermissibly vague in all its 15 applications.” Humanitarian Law Project v. U.S. Treasury Dep’t, 578 F.3d 1133, 16 1146 (9th Cir. 2009); see also United States v. Salerno, 481 U.S. 739, 745 (1987) 17 (holding that a plaintiff mounting a facial challenge must establish that “no set of 18 circumstances exists under [ ] the Act [that] would be valid”). Since a plaintiff 19 mounting a facial attack to a statute must show that the law is impermissible in all 20 its applications, a plaintiff must first show that the law is unconstitutionally vague 21 as applied to them. Castro v. Terhune, 712 F.3d 1304, 1311 (9th Cir. 2013). 22 23 b. Discussion Under the Bridge Proclamation, for rent owed that accrued on or after 24 February 29, 2020 through September 30, 2021, a landlord is prohibited from 25 treating unpaid rent as an enforceable debt if the landlord “has made no attempt to 26 establish a reasonable repayment plan with the tenant per E2SSB 5160, or if they 27 cannot agree on a plan and no local eviction resolution pilot program per E2SSB 28 5160 exists.” Proc. 21-09, ¶ 42. Further, a landlord is required to offer a tenant a ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT . . . * 36 Case 1:20-cv-03182-SAB ECF No. 60 filed 09/21/21 PageID.2081 Page 37 of 42 1 “reasonable repayment plan” for rent accrued between August 1, 2021 and 2 September 30, 2021 prior to enforcing any eviction notice pursuant to the order 3 and Section 4 of SB 5160. Id. at ¶ 37. The Bridge Proclamation states that a 4 “reasonable repayment plan” has the same meaning as “reasonable schedule for 5 repayment” as defined under Section 4 of SB 5160. Id. at 43. More specifically, it 6 refers to a “repayment plan or schedule for unpaid rent that does not exceed 7 monthly payments equal to one-third of the monthly rental charges during the 8 period of accrued debt.” Id. 9 Under the previously effective Proclamation 20-19.6, the eviction 10 moratorium applied for all unpaid rent accruing on or after February 29, 2020. 11 Proc. 20-19.6, ¶ 35. A landlord or property manager could not treat any unpaid rent 12 as an enforceable debt if it accrued after this point as a result of the COVID-19 13 pandemic. Id. That prohibition was caveated with the following provision: This prohibition does not apply to a landlord, property owner, or 14 property manager who demonstrates by a preponderance of the 15 evidence to a court that the resident was offered, and refused or failed to comply with, a re-payment plan that was reasonable based on the 16 individual financial, health, and other circumstances of that resident; 17 failure to provide a reasonable repayment plan shall be a defense to any lawsuit or other attempts to collect. 18 19 Id. (emphasis added). At the time, the Washington State Attorney General’s Office 20 prepared assistive materials, including an unpaid rent repayment plan worksheet, to 21 assist landlords and property managers in communicating with tenants to establish 22 such repayment plans. 23 In this case, the Court finds the eviction moratorium is not impermissibly 24 vague and does not violate the void for vagueness doctrine. Plaintiffs’ due process 25 claim fails outright because the contested provision is not a prohibition and does 26 not require them to do anything. See Grayned, 408 U.S. at 108 (“It is a basic 27 principle of due process that an enactment is void for vagueness if its prohibitions 28 are not clearly defined.”) (emphasis added). The moratorium’s actual prohibition is ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT . . . * 37 Case 1:20-cv-03182-SAB ECF No. 60 filed 09/21/21 PageID.2082 Page 38 of 42 1 indisputably clear: landlords and property managers may not treat unpaid rent 2 stemming from the COVID-19 pandemic as an enforceable debt during the state of 3 emergency. Plaintiffs’ complaint concerns the exception to the prohibition, which 4 the state constructed to permit enforcement proceedings in narrow circumstances: 5 that is, where a landlord and tenant have established a repayment plan that was 6 “reasonable based on the individual financial, health, and other circumstances of 7 that resident.” Proc. 20-19.6, ¶ 35; see also Proc. 21-09, ¶¶ 42–45. This provision, 8 which permits rather than prohibits a particular remedy, is not properly challenged 9 under the vagueness doctrine. Further, even if this exception constituted a “prohibition” and fell within the 10 11 scope of the vagueness doctrine, the moratorium is not vague as applied to 12 Plaintiffs. Plaintiffs have failed to demonstrate that the eviction moratorium in 13 either its previous or current form is impermissibly vague as applied to them.4 14 Plaintiffs’ vagueness claim is directly undermined by the fact that at least two 15 Plaintiffs have managed to create repayment plans with tenants. During 16 implementation of the former moratoria, which provides slightly less substantive 17 guidance on establishing repayment plans, Plaintiff Jay Glenn attested that, for 18 example, one tenant owed $3,000 in past-due rent and offered to pay $120 per 19 month after moveout, which he accepted as reasonable. And under the operative 20 Bridge Proclamation, such a plan is plainly reasonable if the schedule does not 21 “exceed monthly payments equal to one-third of the monthly rental charges during 22 the period of accrued debt.” Proc. 21-09, ¶ 43. Provided that a devised schedule 23 does not exceed this threshold, landlord and property managers may seek 24 reimbursement if a tenant defaults under the repayment plan. Because of this, the 25 Court cannot find that the repayment plan provision does not provide a person of 26 27 4 Plaintiffs do not contend that their First Amendment rights are implicated, and 28 therefore heightened scrutiny does not apply. ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT . . . * 38 Case 1:20-cv-03182-SAB ECF No. 60 filed 09/21/21 PageID.2083 Page 39 of 42 1 ordinary intelligence fair notice of what is permitted (or prohibited) or that it 2 encourages seriously discriminatory enforcement. See Williams, 553 U.S. at 34. 3 Plaintiffs have failed to demonstrate that there is no set of circumstances where the 4 law as applied would be valid, and their facial attack is unsuccessful. See Salerno, 5 481 U.S. at 745; Castro, 712 F.3d at 1311. Accordingly, Plaintiffs’ claim that the 6 eviction moratorium is unconstitutionally vague fails as a matter of law, and 7 summary judgment on this claim is granted to Defendants. 8 2. Whether the Eviction Moratorium Violates Plaintiffs’ Substantive Due 9 Process Rights 10 a. Legal Standard 11 The right to use property as one wishes is not a fundamental right under 12 substantive due process, as it is economic in nature. Slidewaters LLC v. 13 Washington State Dep’t of Lab. & Indus., 4 F.4th 747, 758 (9th Cir. 2021); Bowers 14 v. Whitman, 671 F.3d 905, 915–17 (9th Cir. 2012). “The proper test for judging the 15 constitutionality of statutes regulating economic activity . . . is whether the 16 legislation bears a rational relationship to a legitimate state interest.” Jackson 17 Water Works, Inc. v. Pub. Util. Comm’n of Cal., 793 F.2d 1090, 1093–94 (9th Cir. 18 1986). “Legislative acts that do not impinge on fundamental rights or employ 19 suspect classifications are presumed valid, and this presumption is overcome only 20 by a ‘clear showing of arbitrariness and irrationality.’” Slidewaters LLC, F.4th at 21 758 (quoting Kawaoka v. City of Arroyo Grande, 17 F.3d 1227, 1234 (9th Cir. 22 1994)). The U.S. Supreme Court has “long eschewed” a heightened standard of 23 scrutiny when addressing substantive due process challenges by government 24 regulation. Lingle, 544 U.S. at 542; see also Ferguson v. Skrupa, 372 U.S. 726, 25 730 (1963) (“We have returned to the original constitutional proposition [pre26 Lochner] that courts do not substitute their social and economic beliefs for the 27 judgment of legislative bodies, who are elected to pass laws.”). Instead, federal 28 ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT . . . * 39 Case 1:20-cv-03182-SAB ECF No. 60 filed 09/21/21 PageID.2084 Page 40 of 42 1 courts must defer “to legislative judgments about the need for, and likely 2 effectiveness of, regulatory actions.” Lingle, 544 U.S. at 545. 3 Accordingly, to determine whether the eviction moratorium violates 4 Plaintiffs’ substantive due process rights, the Court must first determine whether 5 the law could advance any legitimate government purpose. Kawaoka v. City of 6 Arroyo Grande, 17 F.3d 1227, 1234 (9th Cir. 1994). Second, the Court must 7 determine whether the law is arbitrary and irrational. See Lingle, 544 U.S. at 542; 8 Slidewaters LLC, 4 F.4th at 758. This is akin to a rational basis standard of review, 9 see Exxon Corp. v. Governor of Md., 437 U.S. 117, 124–25 (1978), and is a “less 10 searching” standard than that utilized in a constitutional challenge under the 11 Contracts Clause, Pension Ben. Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 12 733 (1984). 13 Furthermore, the U.S. Supreme Court has made clear that a substantive due 14 process claim must give way to a claim based on identical facts that is derived 15 from “an explicit textual source of constitutional protection.” Graham v. Connor, 16 490 U.S. 386, 395 (1989); Albright v. Oliver, 510 U.S. 266, 266, 273 (1994) (four17 Justice plurality), id. at 281 (Kennedy, J., concurring); Stop the Beach 18 Renourishment, Inc., 560 U.S. at 721 (Kennedy, J., concurring). b. Discussion 19 20 In this case, the Court finds that Plaintiffs’ Contracts Clause claim 21 supersedes their substantive Due Process Clause claim. Plaintiffs’ substantive due 22 process claim is identical to their cause of action under the Contracts Clause, 23 which the Court has already adjudicated. The Contracts Clause provides “an 24 explicit textual source of constitutional protection” and Plaintiffs may not 25 repackage their identical argument into an independent due process claim. See 26 Graham, 490 U.S. at 395. 27 Further, Plaintiffs’ property-based substantive due process claim employs a 28 lower standard of scrutiny than that employed under their Contracts Clause claim. ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT . . . * 40 Case 1:20-cv-03182-SAB ECF No. 60 filed 09/21/21 PageID.2085 Page 41 of 42 1 The Court already determined that, under Contracts Clause analysis, the eviction 2 moratorium is an appropriate and reasonable fit to a significant and legitimate 3 purpose of the state. The moratorium is not unduly oppressive to Plaintiffs’ due 4 process rights or arbitrary and irrational for the same reasons it is an “appropriate” 5 and “reasonable” regulation under the Contracts Clause. Accord Blaisdell, 290 6 U.S. at 448. As a result, the Court grants summary judgment to Defendants on 7 Plaintiffs’ substantive due process claim. V. 8 Conclusion For the foregoing reasons, this Court holds that the Washington’s eviction 9 10 moratorium does not violate the Takings Clause, Contracts Clause, or Due Process 11 Clause of the U.S. Constitution. The state government can, should, and must 12 protect the public’s health and safety during a pandemic to mitigate transmission of 13 a novel and potentially fatal pathogen, as the State of Washington has done in the 14 past nineteen months to combat the COVID-19 pandemic. The people of 15 Washington, all of us collectively, can, should, and must protect ourselves, but also 16 one another, during the pandemic. This worthy objective includes protecting the 17 most vulnerable individuals in our state. The eviction moratorium is part of the 18 emergency efforts implemented by the duly elected governor of the State of 19 Washington, whose role is to exercise his powers and responsibilities to protect the 20 people from the COVID-19 pandemic and protect the economy of the state. These 21 aims were appropriately realized through implementation of Washington’s eviction 22 moratorium. 23 // 24 // 25 // 26 // 27 // 28 // ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT . . . * 41 Case 1:20-cv-03182-SAB ECF No. 60 filed 09/21/21 1 Accordingly, IT IS HEREBY ORDERED: 2 1. PageID.2086 Page 42 of 42 Defendants’ Cross-Motion for Summary Judgment, ECF No. 30, is 3 GRANTED. 4 2. Plaintiffs’ Motion for Summary Judgment, ECF No. 22, is DENIED. 5 3. The District Court Executive is directed to enter judgment in favor of 6 Defendants and against Plaintiffs. 7 IT IS SO ORDERED. The District Court Clerk is hereby directed to enter 8 this Order, provide copies to counsel, and CLOSE the file. 9 DATED this 20th day of September 2021. 10 11 12 13 14 15 16 Stanley A. Bastian Chief United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT . . . * 42

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