The dissent’s main focus centers on what statutes can be suspended by the governor under emergency powers

Chris Corry
Washington Policy Center

In a 5-4 decision, the Washington State Supreme Court upheld Governor Inslee’s eviction moratorium during the pandemic. 

The majority opinion argues that Washington’s emergency powers statutes allowed the governor to suspend evictions without violating the rights of landlords. They note in their decision that while the order prevented landlords from evicting tenants for failure to pay rent, it did not waive the obligation for tenants to pay rent. 

As demonstrated during the pandemic, this created a perverse incentive for tenants. The legal remedy to hold tenants accountable was waived without consideration of the landlords. The court even notes this saying, “some tenants did stop paying their rent and that failure imposed a significant hardship on some landlords”. However, they deny that the governor violated the takings clause because the moratorium was not a physical taking of the landlord’s property. 

The majority opinion does admit that fundamental rights have been violated by governments in history during emergencies. Given the issue at hand they ironically state:

“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.”

The dissent offers a much different view, “I would hold that the governor exceeded statutory authority when issuing the eviction moratorium proclamations”. While the majority argued that tenants still had to pay rent, the dissent argues that by removing the statutory remedy of eviction, you also removed the statutory obligation to pay rent thus depriving landlords. 

The dissent’s main focus centers on what statutes can be suspended by the governor under emergency powers, noting:

“The broadened authorization permits the governor to waive or suspend statutory and regulatory obligations or limitations that prescribe the procedures for conduct of state business or the orders, rules, or regulations of any state agency. That is, the governor is authorized only to waive or suspend statutory obligations or limitations for certain executive functions.” 

You can read the decision here. 

Chris Corry is the director of the Center for Government Reform at the Washington Policy Center. He is also a Washington state representative.

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