My Contribution to Brennan Center Symposium on the Most Significant State Constitutional Cases of 2023

I focus on the Washington Supreme Court's flawed decision holding an eviction moratorium is not a taking of private property.

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The Brennan Center State Court Report has posted a symposium on the "2023's Most Significant State Constitutional Cases." My contribution focuses on the Washington Supreme Court's flawed ruling in holding that an eviction moratorium is not a taking of private property requiring compensation under its state constitution. Here's an excerpt:

My choice for a notable state constitutional case is Gonzales v. Inslee, where the Washington Supreme Court held that the state's long-running Covid-era eviction moratorium was not a taking of private property requiring compensation under the Takings Clause of the state constitution. For many months, the state barred landlords from evicting tenants for nonpayment of rent.

In Cedar Point Nursery v. Hassid, the U.S. Supreme Court ruled in 2021 that even temporary mandated physical occupations of privately owned land qualify as "per se" (automatic) takings under the Takings Clause of the Fifth Amendment. Gonzales only addresses claims under Article I, Section 16 of the Washington Constitution. But the state supreme court ruled that eviction moratoriums are not covered by the per se rule, even assuming it applies…. The justices reasoned the eviction moratorium was merely a "regulation" of a preexisting "voluntary relationship" between tenants and owners. They ignored the obvious point that, in the absence of the "regulation," the tenants would have no right to remain on the owners' land. Thus, an eviction moratorium undeniably does mandate a physical occupation of property.

The court's reasoning — which may be copied by other state and federal courts — has implications that go beyond eviction moratoriums (though those are significant in themselves). If there is no takings liability for physical occupations linked to "voluntary relationships," then there is no taking when conservative states require businesses and employers to allow employees and customers to bring guns onto their property, or when they enact laws barring employers from excluding workers who refuse to get vaccinated for Covid-19 or other contagious diseases….

The Gonzales decision also included a dubious ruling that eviction moratoria don't violate the state constitution's Contract Clause, an issue analyzed in an earlier Brennan Center essay by Anthony Sanders of the Institute for Justice.

In addition to my piece, the symposium on 2023 state constitutional cases includes contributions by a variety of prominent legal scholars and commentators, including Erwin Chemerinsky, Leah Litman, Meryl Chertoff, Anthony Sanders,  and more. It's a helpful reminder that state constitutional law has a big impact, even though it rarely attracts the kind of attention that high-profile federal cases get.