Gonzales v. Inslee

535 P.3d 864

Gene GONZALES and Susan Gonzales, Horwath Family Two, LLC, and The Washington Landlord Association, Petitioners,

v.Governor Jay INSLEE and State of Washington, Respondents.

No. 100992-5

Supreme Court of Washington, En Banc.

Argued February 23, 2023

Filed September 28, 2023

Richard M. Stephens, Stephens & Klinge LLP, 10900 Ne 4th St. Ste. 2300, Bellevue, WA, for Petitioners.

Brian Hunt Rowe, Attorney at Law, Cristina Marie Hwang Sepe, WA State Office of the Attorney General, 800 Fifth Ave. Ste. 2000, Seattle, WA, Jeffrey Todd Even, Washington State Legislature P. O. Box 40500, Olympia, WA, for Respondents.

Sam Spiegelman, Attorney at Law, 4107 3rd Ave. Nw, Seattle, WA, Brian Trevor Hodges, Pacific Legal Foundation, 555 Capitol Mall Ste. 1290, Sacramento, CA, for Amicus Curiae on behalf of Pacific Legal Foundation.

Roger D. Wynne, Jeffrey S. Weber, Seattle City Attorney's Office, 701 5th Ave. Ste. 2050, Seattle, WA, for Amicus Curiae on behalf of City of Seattle.

Jackson Wilder Maynard Jr., Building Industry Association of Wash., 300 Deschutes Way Sw Ste. 300, Tumwater, WA, for Amicus Curiae on behalf of Citizen Action Defense Fund.

Victoria Elizabeth Ainsworth, Corr Cronin LLP, 1015 2nd Ave., Floor 10 Seattle, WA, Edmund Robert Witter, Attorney at Law, Yuan Ting, King County Bar Association, 1200 5th Ave Ste. 700, Seattle, WA, for Amicus Curiae on behalf of King County Bar Association Housing Justice Project.

Paul J. Lawrence, Pacifica Law Group LLP, 1191 2nd Ave. Ste. 2000, Seattle, WA, Rachel L. Fried, Democracy Forward Foundation, P. O. Box 34553, Washington, DC, for Amici Curiae on behalf of Appleseed Foundation, Alliance for Justice, Western Center On Law and Poverty.

Christopher Daniel Cutting, Cutting Law Office PC, 811 1st Ave. Ste. 530, Seattle, WA, for Amicus Curiae on behalf of Rental Housing Association of Washington.

González, C.J.

¶1 The COVID-19 pandemic was a worldwide emergency. COVID-19 killed millions of people, destroyed livelihoods, and is still having profound effects. As it spread throughout the nation, governors and federal officials responded under their emergency powers to save lives and livelihoods.

¶2 Our governor has enhanced powers to act in an emergency under RCW 43.06.220 and related statutes. See Cougar Bus. Owners Ass'n v. State , 97 Wash.2d 466, 472-75, 647 P.2d 481 (1982), overruled in part on other grounds by Chong Yim v. City of Seattle , 194 Wash.2d 682, 451 P.3d 694 (2019). The petitioners contend the governor exceeded his authority here and violated their statutory and constitutional rights. History is unfortunately replete with times that real or perceived emergencies were used by those in power to violate fundamental rights: suspects have been tried before improper courts, habeas corpus has been effectively suspended, and citizens and lawful residents of the country have been interned and deported under the press of perceived emergencies. See Hamdi v. Rumsfeld , 542 U.S. 507, 124 S. Ct. 2633, 159 L. Ed. 2d 578 (2004) (plurality opinion); Ex parte Milligan , 71 U.S. (4 Wall.) 2, 18 L. Ed. 281 (1866) ; Ex parte Merryman , 17 F. Cas. 144 (Taney, Circuit Justice, C.C.D. Md. 1861) (No. 9,487); Korematsu v. United States , 584 F. Supp. 1406 (N.D. Cal. 1984) ; Yxta Maya Murray, The Latino-American Crisis of Citizenship , 31 U.C. DAVIS L. REV. 503, 521 (1998). In more deliberate times, we hope, these violations of rights would not have survived the checks and balances of a democratic society operating under law. As the United States Supreme Court observed long ago, "The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of [people], at all times, and under all circumstances." Milligan , 71 U.S. at 120-21. The same is true of our state constitution.

¶3 In an attempt to both empower and properly constrain the governor's use of power in emergencies, our legislature has enacted and revised laws concerning the executive's emergency powers. See RCW 38.52.050 ; RCW 43.06.010, .200-.270. Under these laws, the governor is empowered to prohibit "activities as he or she reasonably believes should be prohibited to help preserve and maintain life, health, property or the public peace." RCW 43.06.220(1)(h).

¶4 Acting under these laws, Governor Inslee imposed a moratorium on evicting people from their homes for failing to pay rent from March 2020 through June 2021. Proclamation 20-19.6.¹ We are asked whether this eviction moratorium was lawful. We conclude that it was and affirm the courts below.

BACKGROUND

¶5 In early January 2020, the CDC (United States Centers for Disease Control and Prevention) warned of a cluster of pneumonia cases in Wuhan, China. Less than two weeks later, COVID-19 was first confirmed in Washington State. By the end of the month, the World Health Organization declared the COVID-19 outbreak "a ‘public health emergency of international concern’ " and the United States Health and Human Services Secretary declared a public health emergency. Clerk's Papers (CP) at 544. The first confirmed COVID-19 death followed soon after.

¶6 The virus that causes COVID-19 easily spreads from person to person.² It can be spread when a person carrying the virus talks, sneezes, or coughs, and it can be spread by a person who has no symptoms. The risk of transmission is significantly higher indoors. A significant portion of those who contracted COVID-19, especially in those early days, required hospitalization and intensive care.

¶7 COVID-19 threatened to overwhelm our health care system. Initially, treatment was difficult and there were few helpful medical interventions. One thing was clear: physical distance greatly reduced the chance of transmission.

¶8 As COVID-19 was spreading quickly through our state, Governor Inslee declared a state of emergency. He limited public gatherings, closed schools, and closed most public venues. Nonetheless, the disease continued to spread and by mid-March 2020, Washington had the highest number of COVID-19 cases and one of the highest per capita rates of infection of any state in the country. By the end of March 2020, hundreds of new cases were being confirmed in Washington every day, with likely thousands more unreported.

¶9 In response, the governor escalated his attempts to slow the transmission of COVID-19. Among other things, he directed Washington residents to stay home except for certain essential activities and jobs and categorically prohibited both public and private gatherings. This slowed the transmission of COVID-19. It also had an obvious and immediate effect on many people's incomes. Over 1.6 million people in Washington filed initial unemployment claims between March and December 2020.

¶10 It was clear that the COVID-19 pandemic would cause significant and widespread financial hardship, particularly on those with low and moderate incomes. It was also clear that mass evictions during a pandemic would increase COVID-19 transmission by forcing people into crowded courthouses for eviction proceedings, into crowded homeless shelters and encampments, and into the increasingly crowded homes of friends and family.

¶11 In response, the governor issued another proclamation that briefly suspended most residential evictions. Proclamation 20-19.³ That moratorium was extended and modified over the next year and a half as the pandemic continued to spread. See Proclamation 21-09.01;⁴ CP at 687-90. The CDC followed suit with a nationwide residential eviction moratorium.

¶12 While the specifics of the eviction moratoriums shifted over time, generally speaking, they prohibited residential landlords from initiating or enforcing, and law enforcement from assisting in, an eviction based on the failure to pay rent. Proclamation 20-19, at 2-3. The obligation to pay rent, of course, continued, and evictions were allowed for other reasons, such as in response to a significant risk to the health or safety of others created by the resident or when the owner planned to personally occupy or sell the property. In the second proclamation, landlords were prohibited from treating any unpaid rent that was the result of COVID-19 as an enforceable debt unless the landlord established that the tenant was offered, and refused or failed to comply with, a reasonable repayment plan. Proclamation 20-19.1, at 4.⁵

¶13 The record suggests that without these moratoriums, up to 790,000 people in Washington would have been evicted from their homes during the pandemic. Verbatim Rep. of Proc. (VRP) at 15. It also suggests there would have been up to 59,000 additional COVID-19 cases and 621 more deaths in our state. Id .

¶14 As vaccinations were increasingly available and the moratorium wound down, the legislature enacted a rental assistance program and an eviction resolution pilot program. LAWS OF 2021, ch. 115. Among other things, the legislature created a mechanism and funding to compensate, at least partially, landlords whose tenants defaulted on rent despite being offered reasonable repayment plans. LAWS OF 2021, ch. 115 §§ 4-5; RCW 59.18.630 ; RCW 43.31.605.

The eviction moratorium never relieved tenants of the obligation to pay rent. Some tenants did stop paying their rent and that failure imposed a significant hardship on some landlords. Gene and Susan Gonzales, Horwath Family Two, LLC, and the Washington Landlord Association (collectively petitioners) brought an injunctive and declaratory judgment action against Governor Inslee and the State in Lewis County Superior Court. They contend, among other things, that the governor had exceeded his statutory emergency powers under RCW 43.06.220. They also argue that if the statute had authorized the moratorium, it unconstitutionally delegated legislative powers to the governor; that the eviction moratorium unconstitutionally impaired contracts in violation of the state constitution; that it constituted a taking under the state constitution; that...