Jevons v. Inslee

• Decision Date: 20 September 2021
• Docket Number: 1:20-CV-3182-SAB
• Parties: Enrique JEVONS, as managing member of Jevons Properties LLC; Jevons Properties LLC ; Freya K. Burgstaller, as trustee of the Freya K. Burgstaller Revocable Trust; Jay Glenn ; and Kendra Glenn, Plaintiffs, v. Jay INSLEE, in his official capacity as the Governor of the State of Washington ; and Robert Ferguson, in his official capacity of the Attorney General of the State of Washington, Defendants.
• Court: U.S. District Court — District of Washington

561 F.Supp.3d 1082

Enrique JEVONS, as managing member of Jevons Properties LLC; Jevons Properties LLC ; Freya K. Burgstaller, as trustee of the Freya K. Burgstaller Revocable Trust; Jay Glenn ; and Kendra Glenn, Plaintiffs,

v.Jay INSLEE, in his official capacity as the Governor of the State of Washington ; and Robert Ferguson, in his official capacity of the Attorney General of the State of Washington, Defendants.

No. 1:20-CV-3182-SAB

United States District Court, E.D. Washington.

Signed September 20, 2021

Filed September 21, 2021

Richard M. Stephens, Stephens & Klinge LLP, Bellevue, WA, for Plaintiffs.

Zachary Pekelis Jones, Pacifica Law Group, Brian H. Rowe, Jeffrey Todd Even, Cristina Sepe, Washington State Office of the Attorney General, Seattle, WA, for Defendants.

ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

Stanley A. Bastian, Chief United States District Judge

Before the Court are the parties’ cross-Motions for Summary Judgment. ECF Nos. 22, 30. The Court heard oral argument on the motions on August 24, 2021 by videoconference. Richard Stephens appeared by video on behalf of Plaintiffs Enrique Jevons; Jevons Properties, LLC; Freya K. Burgstaller; Jay Glenn; and Kendra Glenn. Cristina Sepe and Brian Rowe appeared by video on behalf of Defendants Washington State Governor Jay Inslee and Washington State Attorney General Robert Ferguson.

This action concerns several constitutional challenges to Washington's eviction moratorium enacted in response to the COVID-19 pandemic. To mitigate the spread of COVID-19 and prevent exacerbation of homelessness in the state, Washington State Governor Jay Inslee issued Proclamation 20-19 on March 18, 2020. The Proclamation and subsequent revisions established a moratorium on evictions, among other protective health and safety measures. That eviction moratorium persists—although under new conditions for when landlords and property managers may pursue evictions and enforcement of rental debt—through the Governor's "Bridge Proclamation."

After reviewing the parties’ briefing, oral argument, and the applicable caselaw, the Court denied Plaintiffs’ Motion for Summary Judgment and granted Defendants’ Cross-Motion for Summary Judgment at the hearing. Upon reaching the merits of Plaintiffs’ arguments, the Court held that Washington's eviction moratorium does not violate the Takings Clause, Contracts Clause, or Due Process Clause of the United States Constitution. This Order memorializes the Court's ruling.

I. Facts¹

A. The COVID-19 Outbreak and Washington's Eviction Moratorium

On February 29, 2020, Washington State Governor Jay Inslee issued Proclamation 20-05, declaring a state of emergency in Washington from the outbreak of novel coronavirus SARS-CoV-2. The SARS-CoV-2 virus causes coronavirus disease 2019 ("COVID-19"), a highly contagious and potentially fatal respiratory tract infection. The virus spreads primarily through close interactions via respiratory droplets, and there is a lag of several days before the onset of symptoms. Seniors and persons with preexisting medical conditions are most vulnerable to complications and death from COVID-19, and statistics indicate that people of color disproportionately contract and experience severe COVID-19 health outcomes. Without a vaccine or highly effective treatment for COVID-19 at the time of the outbreak, reducing person-to-person contact through community mitigation measures was the most effective way of combatting transmission and ensuring Washington's healthcare system was not overwhelmed. Accordingly, Governor Inslee ordered Washingtonians to stay home except for participation in essential activities and businesses.

The Governor's Office also recognized that the COVID-19 pandemic would significantly reduce economic output and income, making many tenants unable to afford rent from the outset of the pandemic. Prior to the outbreak, the state was facing a homelessness and housing instability crisis. Between 2013 and 2017, over 130,000 adults in Washington faced an eviction, and by 2018, homelessness in the state reached Great Recession levels. Without countermeasures, the Governor's Office anticipated that the COVID-19 pandemic's economic dislocations would result in mass evictions, exacerbating housing instability and homelessness in the state. A rise in evictions, and the lifting of the eviction moratoria generally, are associated with an increase in COVID-19 infections and deaths. Projections performed by the University of Washington Institute for Health Metrics and Evaluation indicated that mass evictions could have resulted in between 18,235 to 59,008 more eviction-attributable COVID-19 cases, 1,172 to 5,623 more hospitalizations, and 191 to 621 more deaths in the state. Even under lockdown scenarios, containment of COVID-19 was slower and less effective at reducing the size of the pandemic when evictions were allowed to continue.

The Washington State Department of Health ("DOH") was particularly concerned with outbreaks of COVID-19 among persons experiencing housing insecurity and homelessness. As of April 25, 2021, the DOH identified 202 COVID-19 outbreaks in homeless services or shelters. People experiencing homelessness are typically at increased risk of acquiring COVID-19 due to crowded living situations. Housing insecure families may find themselves in shared living conditions, which have been found to increase contact with people and make compliance with public health guidance difficult. People experiencing homelessness are also at an increased risk for severe COVID-19, due to a higher rate of underlying medical conditions and co-morbidities.

For the foregoing reasons, Governor Inslee signed Proclamation 20-19 on March 18, 2020, establishing a temporary moratorium on evictions in Washington. The Governor issued subsequent proclamations on April 16, 2020 (Proclamation 20-19.1), June 2, 2020 (Proclamation 20-19.2), July 24, 2020 (Proclamation 20-19.3), October 14, 2020 (Proclamation 20.19-4), December 31, 2020 (Proclamation 20-19.5), and March 18, 2021 (Proclamation 20-19.6), refining the moratorium and other health and safety measures with each revision. While broadly prohibiting the commencement of eviction proceedings, the proclamations did not forgive any debt of unpaid rent and stressed that tenants "who are not materially affected by COVID-19 should and must continue to pay rent." Proc. 20-19.6, ¶ 7. The Governor's public messaging has also expressly stated that tenants should pay rent if able and should communicate with landlords. Beginning with Proclamation 20-19.1, the moratoria also prohibited attempts to collect any such unpaid rent through withholding of the tenant's security deposit. E.g. , Proc. 20-19.1, ¶ 26. Plaintiffs in this action primarily challenged the last rendition of the moratorium, Proclamation 20-19.6. Proclamation 20-19.6 ended by its own terms on June 30, 2021, and by operation of subsequent legislation, which is discussed in the following section. Id. at ¶ 26. The eviction moratorium and attendant provisions are still in effect through a Bridge Proclamation, however, which is effective until September 30, 2021.

Following input from property owners, beginning with Proclamation 29-19.1, the Governor's Office permitted landlords to treat unpaid rent as an enforceable debt during the state of emergency, provided that the tenant was offered, but refused, a reasonable payment plan based on the financial, health, or other circumstances of the tenant. The exception expressly placed the burden of proof to enforce rental debt on landlords and property managers. This decision was made because, in many cases, tenants in genuine economic distress due to the pandemic were unable to provide adequate proof of their distress. The Governor's Office reasoned that many tenants have informal employment or non-traditional sources of income and that, for these tenants, proving distress is not as simple as submitting a copy of a termination letter from an employer. A tenant who does not lose their job could be facing pandemic-related economic or health distress anyway, such as the burden of caring for family members who lost their jobs or being unable to provide for themselves. The revised moratorium thus placed the burden of proof on landlords and property managers based on the state's belief that not all tenants in need of protection were able to submit a declaration of hardship.

Overall, during the COVID-19 public health crisis, over 1.6 million Washingtonians have filed unemployment claims, and the state's unemployment rate has exceeded its Great Recession peak. Through the first four months of 2021, over 265,000 new unemployment claims were filed, demonstrating that the job crisis persisted over a year after COVID-19 emerged. Recent census survey data reported that 10.7% of renters in Washington (160,342 people) were behind on their rent, and 17.8% of renters (265,342 people) in Washington reported having little or no confidence in their ability to pay rent. An analysis by the Aspen Institute found that 649,000 to 789,000 people in Washington—up to 10.3% of the state's entire population—would be at risk of eviction without the state's eviction moratorium. During the pandemic, at least 18,000 more Washingtonians have relied on cash assistance and 160,000 more on food assistance. The Court also notes that the Eastern District of Washington, which encompasses most of the state's landmass, faces unique and ongoing challenges from the COVID-19 pandemic. Vaccinations

in eastern Washington have lagged behind the rest of the state for numerous reasons, including misinformation and lack of accessibility.²

B. Senate Bill 5160 and the Housing Stability "Bridge" Proclamation

In April 2021, Senate Bill 5160 ("SB 5160") was adopted by the Washington Legislature and signed into law by Governor Inslee. Engrossed Second Substitute S.B. 5160, 67th Leg., Reg. Sess. (Wash....