October 2023

Isnt_it

To us, one of the strangest things in constitutional law is the conclusion that although private property is a fundamental right for purposes of the Just Compensation Clause, it isn’t fundamental for purposes of the Due Process Clause. When your private property is taken you must be provided compensation. But when you are deprived of property, all you get is rational basis review. But both “property” and “private property” are right there in the text of the Constitution. How can courts conclude that a property right isn’t fundamental?

Doesn’t compute for you either?  The lower courts are indeed all over the place on this one. Check out cases like this one, and compare the reasoning to cases like this one.

Last week, our firm filed a cert petition asking the Supreme Court to take up the issue. The case involves property owners’ Due Process challenge to the City …

Continue Reading New Takings Cert Petition: The Right To Exclude Is A Fundamental Right Isn’t It?

We’re not going to ask you to read the entire 24 pages of the Washington Supreme Court’s 5-4 opinion in Gonzales v. Inslee, No. 1000992-5 (Sep. 28, 2023), in which the court seriatim rejects every challenge to the Governor’s Co-19 emergency eviction moratorium for tenants, which allowed tenants who did not pay rent to remain in occupation for the up to 15 months the moratorium was in place.

Instead, we’re going to focus only on the takings challenge under the Washington Constitution. The plaintiffs asserted a physical takings claim, based on their right to exclude nonpaying tenants. Rejecting the argument (as several other courts have done), the Washington court concluded that the moratorium on evictions was merely regulation of the “voluntary relationship” between an owner and tenant.

Hang on, you say, what do you mean “voluntary relationship?” If I am an owner, yes, I voluntarily handed over the keys…

Continue Reading PruneYard Revisited: Washington SCT Says No Physical Occupation Taking In State’s Eviction Ban – You Invited Tenants In, So Forcing Owners To House Them For Free Is Merely Regulating That Voluntary Relationship